The FAW is the state analog to the Federal Register and serves as a weekly accounting of agency activities for the state of Florida. It is published every Friday. All notices/proposals for new rules and amendments to existing regulations must be published in the FAW as part of the promulgation process.
The FAW is the only Florida source for the history or intent behind regulations. Since the FAC is a looseleaf publication, historical versions of regulations are difficult to find because the older version is replaced once a newer rule is promulgated. Therefore the FAW is the mechanism for examining the language of a regulation as it stood in a particular year.
Finding a rule's history in the FAW is also the mechanism for understanding the policy rationale behind a particular regulation. Proposed rules will have preambles explaining the rationale behind an administrative regulation. This preamble is often the only source for determining the regulatory intent behind the rule. Because of a quirk in Florida administrative law, the full text of a regulation may only be published in the FAW at the time that the rule is proposed. If no changes to the proposed language are made when the regulation is promulgated then the text is not reprinted. However, if an agency amends the language prior to promulgation, then the text is republished with the changes incorporated.
In addition, each issue of the FAW may contain: (1) notices of development of proposed rules and negotiated rulemakings; (2) notices of changes, corrections and withdrawals; (3) emergency rules; (4) petitions and dispositions regarding variances or waivers; (5) notices of meetings, workshops, and public hearings; (6) notices of petitions and dispositions regarding declaratory statements; (7) notices of petitions and dispositions regarding rule validity; (8) notices of petitions and dispositions regarding policy changes; (9) announcements and reports of the Joint Administrative Procedures Committee; (10) notices regarding bids, proposals and purchasing; (11) other miscellaneous matters and (12) the index to rules filed during the preceding week. In addition, the first issue of each month supplies a cumulative LIST OF SECTIONS AFFECTED table that tracks the changes pending to regulations for the previous eight weeks. These tables refer the researcher to the volume and page of the FAW where the changes were published.
The FAW is freely available online in two places. All FAW issues from January 1, 2006 are searchable simultaneously at the new state site at https://www.flrules.org/Default.asp. Individual items in weekly issues may be retrieved online from January 1, 1999 forward at https://www.flrules.org/bigdoc/default.asp. These are PDF files and can be searched using the PDF search feature to locate material in a particular issue. The FAW is also available in Lexis for full-text searching from January of 1996 to the present.
The full-text searching feature at https://www.flrules.org/Default.asp, is also very useful in locating materials in the FAW. If a query is entered, a user will locate both the proposed rulemaking notices and the promulgated rule for actions taken after January 1, 2006. This is a very efficient way to do a search for rules on a particular topic because it searches both the FAW and the FAC simultaneously. This Web site also allows you to search for regulations by entering a statutory provision that would authorize rules on a particular subject. And do remember that this is a free resource.
Administrative Law Project Report Introduction
This article covers Administrative Law project report and studies related to it. At the outset of study of any branch of law, it may be desirable to endeavor, to define and delimit the field of study. Administrative law or the law relating to administration, however, defies almost any precise definition or limitation. Dicey in the nineteenth century went so far as to say that there was no administrative law in Britain; in the sense that there is no concise and separate system of administrative law, as it was to be found in many Continental countries. He was, to some extent, right but it was certainly not true to say that there was no law relating to the administration. However, if administrative law is simply considered to be the law relating to the administration of government, there must be acknowledged to be a large body of administrative law in Britain today, since there is an extensive system of public administration and a vast corpus of rules relating to that administration.
Law itself also defies definition, but perhaps the most satisfactory description of law (in the lawyer’s and not the scientist’s sense) is that body of rules which are recognized by the Courts of the country as law. Logically, of course, this is not a valid definition, for “Courts” can be defined only by reference to law. As a description, however, the theories of realist schools are perhaps the most acceptable for the English Legal system. Can then “administrative law” be described as those rules which are recognized by the Courts as law, and which relate to and regulate the administration of government? Before the value of this description can be assessed, three matters must be clarified:-
- The distinction between administrative law and constitutional law
- Administrative law is not concerned only with law
- The meaning of administration
The distinction between administrative law and constitutional law:
The sources of both constitutional and administrative law are the same and both are concerned with the functions of government and both are part of what is sometimes known as “”public law”; but administrative law is concerned with the intricacies of running a government while constitutional law is all about the issues of the legality of the provisions of the constitution. Likewise, the first is more specific while the latter is the general law.
Constitutional Law is the highest law. It gives the guidelines with regard to the general principles relating to organization and powers of organs of the state, and their relations between citizens and towards the state. It touches almost all branches of laws in the country.
It also gives the guidelines about the international relations. It deals with the general principal of state pertaining to all branches. It demarcates the constitutional status of Ministers and public servants. It imposes certain negative duties on administrators, if they are found violating the fundamental rights of the citizens and etc. It also imposes certain positive duties on administrators, viz, implementation of social welfare schemes. The constitutional laws have complete control on the administrative law and administrators of the country.
Administrative law is a species of constitutional law. It is subordinate to constitutional law. It doesn’t deal with all branches of law, rather it details with the powers and functions of administrative authorities. It does not deal with international law. It is concerned with the organization of the services or the working of the various government departments. The administrators have to follow constitutional law first and next the administrative law. The administrators should perform their functions with utmost obedience to constitutional law.
Perhaps the happiest description of the borderline between the two is that constitutional law is concerned with the organization and functions of government at rest, whilst administrative law is concerned with that organization and those functions in motion.
Even this is not entirely true, as the law relating to the electoral system, and the organization of certain administrative bodies at a level below the central government, such as local authorities and independent statutory corporations is commonly regarded as being within the scope of administrative law. Dr. F.J.Port, the writer of the first book to be published in Britain with the title Administrative Law, gave up all attempts at a definition and contended himself with the following description:
“Administrative Law then is made up of all those legal rules-either formally expressed by the statutes or implied in the prerogative- which have as their ultimate object the fulfillment of public law: It touches first the legislature, in that the formally expressed rules are usually laid down by that body; it touches secondly the judiciary in that (a) there are rules (both statutory and prerogative) which govern the judicial actions that may be brought by or against administrative persons, and (b) administrative bodies are sometimes permitted to exercise judicial powers, thirdly it is, of course, essentially concerned with the practical application of the law ”
Administrative Law is not concerned only with Law:
The administrative lawyers have to work under the authority granted to them by either constitutional provisions or statutes. But when studying administrative law, however, the student- and even more the practitioner- is concerned with these and also with rules which are strictly not law at all. Other subjects in the law, such as tort, industrial law, the law of property, etc, are concerned solely with “lawyer’s law”- the sources of all these branches of law will be found exclusively in statutes, in judicial precedent and perhaps in custom.
Administrative law is concerned also with ministerial circulars and memoranda, decisions of local authorities or public corporations, or of several administrative tribunals, none of which would be recognized or applied by the “ordinary” Court as law. Even the internal structure of the various government agencies is of the interest to the administrative lawyer and it has been suggested that there are common practices observed by local authorities which would seem in some respects comparable with the conventions of the Constitution.
The meaning of Administration:
The administration of government means the practical management and direction of the executive department, or of the public machinery or functions, or of the operations of the various organs of the sovereign. The term “administration” is conventionally applied to the whole class of public functionaries or those in charge of the management of the executive department. People v. Sals- bury, 134 Mich. 537, 90 N. W. 930.
Administrative law is concerned with administration; what is then meant by this concept or expression? “The Administration” is something quite different, in that it is used to signify the government of the day or the body of the persons who for the time being carry on that government.
Finer has defined administration as being the governmental machine by which policy is implemented. Unfortunately this at once introduces another difficulty of definition, as a distinction has to be made between administration and “policy”
By policy is meant formation of a general line or course of action- the idea of leadership, and taking of a major decision on a matter of discretion; administration involves the execution or implementation of that policy so formulated in accordance with general principles.
It seems that the administrative law deals with rules, most but not all of which are rule of law in the strict sense, that are concerned with the conduct of the general business of the government of the country, within the broad principles laid down by the policy-makers. It is concerned with various kinds of government agencies, both at the center and locally, with the interplay of ideas and control between these several agencies, and the relationship between the several agencies and the general public or the private citizen. It is concerned with the preservation of order, the welfare of the citizen and the rights of the individual as against the government of the country, and also with the machinery by which such matters are protected.
Public Administration and Administrative Law:
The institute of Administrative Tribunals is an essential element of two subjects simultaneously i.e. the Public Administration and the Law. They are not only aimed to regulate administrative behavior but are also the creature of Administrative Law.
In ancient ages countries consisted of small number of self-subsistent population so they needed minimum organization as needs of modern age and their maintenance law were unknown to them. With the increase in the size of the population and their needs and advances in technology, the man of present age became dependent upon government for an orderly society and this led to the advent of administration.
Administration is divided into two major portions, public administration and private administration. Private administration is personal and non-political and business natured. Public administration is beaurucratic and governmental. Public administration existed whenever human started living in organized society. However the term came into use in 17th century. In France it appeared in 1812. The purpose of Public Administration changed with the revolutionized objectives of welfare state as the government is expected to spread the benefits of economic and social progress to the whole community. Public administration is rational organization and management of man and material. It is the act and science of designing and carrying out public policies, the policies that are designed by the elected masters. Being an executive organ, it controls and supervises the whole machinery of government. It is also empowered to make rules (delegated legislation) and adjudicate departmental issues (administrative adjudication).
Administrative law is normally called 20th century phenomenon. It is the law relating to public administration. Evolution of modern Public Administration led to the evolution of modern Administrative Law. It is concerned with all the acts of public administrators. One of the main objectives of administrative law is to examine the circumstances and methods by which an individual member of the public can effectively obtain redress of grievance sustained by them at the hands of some agency of the executive power in the state.
Administrative law is complement to constitutional law. It prescribes on the minutest detail, the rules, which shall govern the executive department in administering the law. It is these rules which constitute the body of administrative law. Administrative law deals with the structure, power and functions of administrative authorities, the methods and procedures followed by them in exercising their powers. Administrative law is the discipline that seeks to strike a balance between administrative power and public liberties.
By the active and effective role of administrative law the widest administrative authorities can be made subject to a measure of control. These measures can be taken through the proper introduction and implementation of administrative law, and thus the law proves to be an indispensable instrument of civilization. Superior courts act as custodians and guardian of rule of law.
Administrative tribunals are established to regulate the exercise of administrative discretion. They are part of Administrative law. They have bridged the gap between the sphere of law and that of administration. The concern of administrative law is to see that public authorities can be compelled to perform their duties entrusted to them according to law. It is intended at a system of proper check and balance in public administration.
Definition of Administrative Law:
Maitland discussed the definitions of constitutional and administrative law. He examined the views of Asutin to whom constitutional law is simply what person or classes of persons bore the sovereign powers, while administrative law determines the end and odes to and in which the sovereign powers were exercised. Holland’s view were summarized by Maitland as “I think we catch his idea if we say that, while constitutional law deals with structure, administrative law deals with function.”
Sir Ivor Jennings wrote, “Administrative law is the law relating to the administration. It determines the organization, powers and duties of administrative authorities.” This is most commonly accepted definition today but it does not attempt to distinguish constitutional and administrative law. Ivor Jennings (1959:217) views administrative law, as the law relating to Public administration. It is concerned from the legal point of view, with the forms and constitutional position of public authorities. But Foulkes (1982:1) observes that it is also concerned with the powers and duties of administrators, with their legal relationships with another, with the public and with their employees. According to Professor H.W.R Wade a first approximation to a definition of administrative law is to say that it is the law relating to the control of governmental power and as a second approximation to a definition, administrative law may be said to be body of general principles which govern the exercise of powers and duties by public authorities. According to Wade, administrative law relates to the control of government power. In his opinion, the primary objective of administrative law is to keep powers of the government within their legal limits, so as to protect the citizens against their abuse.
Frankfurter says administrative law deals with the field of legal control exercised by law administering agencies other than courts and the field of control exercised by courts over such agencies.
Phillip O Hood view administrative law as control exercised by courts or tribunals over those powers, especially in relation to the rights of citizens.
K.C Davis defined administrative law as the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action. In his view, emphasis of administrative law is on procedures for formal adjudication and for rule making and also studies such matters as investigating, prosecuting, negotiating, settling or informally acting. Anyhow, these writers themselves point out that the distinctions between constitutional and administrative law drawn are arbitrary.
The definitions by various scholars and jurists revealed that the main concern of administrative law is within the limits, which are set to the exercise of this will. It means that the principle interest of administrative law is in restraints that could be placed on the exercise of administrative discretion.
Nature and Scope of Administrative Law:
The concerns of administrative law are general in nature and can arise in connection with the administration of any public program. While it is necessary to acquire an understanding of the administrative, legal and policy contexts within which questions about, for example, procedural fairness, abuse of discretion, and the interpretation of the legislation arise, the focus of administrative law s not a detailed study of the law of particular programs. Courses on labor relations, land use planning, securities, broadcasting and communications, human rights, and immigration, for example, fulfill this function.
In order to determine the nature and scope of the administrative law, it is imperative to know what it deals with. Administrative law deals with the structure, powers and functions of the organs of administration, the limits of their powers and functions, the methods and procedures followed by them in exercising their powers and functions, the methods by which their powers are controlled including the legal remedies available to a person against them when his rights are infringed by their operation. This statement has four limbs. The first deals with composition and powers of organs of administration. This sphere properly belongs to constitutional law. The second refers to the limits on the powers of the administrative authorities. The third refers to the procedures used in exercising those powers. The study of administrative law of to-day seeks to emphasize not only the extraneous control but also the processes and procedures which the administrative authorities themselves follow in the exercise of their powers. Evolving of fair procedures is a way of minimizing the abuse of vast discretionary powers conferred on the administration. The fourth refers to the control of the administration through judicial and other means. This is very important.
The administrative process has always existed in every country of the world but this process received great significance during 20th century and so was the case with Administrative Law. Administrative Law was in existence in some countries but with the expansion in public administration, it was noticed as a subject of study.
Massey (1995: 7) has summed up the scope of administrative law in this way, “the study of administrative law is not an end in itself but a means to an end. The focal point of this law is the reconciliation of power with liberty. The paradox of twentieth century, in the form of government is the prolific growth in the powers of the state, which on the one hand is necessary for the promotion of the human liberty and freedom, but on the other hand threatens to endanger individual freedom. Therefore, the main task of administrative law is to maintain an ideal equilibrium between the powers of the administration and dictates of the individual liberty.
The scope of administrative law can be narrated as under:
- The methods and procedures of these administrative organs are also studied by this new branch of law.
- It covers the nature of structure, powers and functions of all these administrative organs.
- It also makes available all the relevant remedies to the persons whose rights are infringed by the operations of these organs during the course of administration.
- Why and how administrative organs are to be controlled is also viewed by administrative law.
Administrative law specifies the rights and liabilities of private individuals in their dealings with public officials and also specifies the procedures by which those rights and liabilities can be enforced by those private individuals. It provides accountability and responsibility in the administrative functioning. Also there are specified laws and rules and regulations that guide and direct the internal administration relations like hierarchy, division of labor, etc
History of Administrative Law
Even though administrative law is a newly coined term, but its history can be traced back to the advent of the governments. It has been in existence, one way or another, in every form of government and in all the ages. The development of administrative law goes hand-in-hand with the development of the society. Administrative law can more rightly be said to be the sociology of law and not the philosophy of law. The rapid growth of administrative law in the modern times can be attributed to the following critical changes in the philosophy of the role and function of the state.
1. Laissez Faire
2. Dogma of Collectivism
3. Social-Welfare State
- Laissez Faire:
In the early 20th century the political gospel of laissez-faire was preached. The principles on which the theory of laissez-faire works are as follows-
· Minimum control of government
· Free enterprise
· Law and order not counted as subjects of state
· Power said to be concentrated in the hands of the individualThe theory of Laissez –faire met with the following pitfalls-
· Concentration of powers
· Which led to human misery
· Widening the inadvertent gap between the poor and the rich
lassies faire and its results made the significance of the state and its role as a regulator for all the institutions, including the general welfare and financial machineries more crucial.
The consequence of giving the powers in the hands of the individuals and the minimum government control proved catastrophic .By this the vital power was concentrated in the hands of the rich people and the balance of economy got terribly shaken which only paved way to a debacle that is the increasing economic disparity where the rich became richer and the poor became poorer.
2. Dogma Of Collectivism:
After the miserable consequences that the police state suffered because of the terrible failure of Laissez-Faire, the principle of collectivism evolved which said that the state and individuals shall work in proper synchronization. The state had proper control over the actions of the individuals and the state also stood up to take the responsibility for the individual’s life, liberty and property.
- Social Welfare State:
The Dogma of collectivism gave birth to the being of a social-welfare state. Most of the states in Europe and Asia recognize their role as a major regulatory body while being responsible for the health and education of its inhabitants, to promote their economic and social well being. The social welfare states thrives on the principle of providing justice of all kinds be it social, economic or political and all laws and actions of the government to be taken keeping in mind the interests of the citizens. As a democratic state envisions it.
Evolution of Administrative Law in England:
The history of regulatory control in UK is of great significance; since the role of government as social welfare state was defined by England. Administrative law in its modern form surfaced only in the second half of the seventeenth century. Following the obliteration of the Privy Council’s decision-making power by the Revolution of 1688 when the old system of central political control had fallen, the Court of King’s Bench stepped in; there influence on institutions died and since then the administrative machineries began to be controlled by the courts of law. Writs of Mandamus, Certiriorari and Prohibition as well as ordinary remedy of damages were granted by the King’s Bench to the aggrieved parties against administrative acts. It was the beginning of the administrative law procedures.
Later when the labor party restructured the government institutions to promote the well being of its people, the practical reforms to sort out the discontent with administrative procedures came. And after the Report of the Committee on Administrative Tribunals and Enquiries (the Franks Committee) in 1958 when the Tribunals and Inquiries Act, 1958 was enacted, administrative law emerged in its modern form.
Evolution of Administrative Law in Subcontinent:
In India, from Mauryas to Guptas, Guptas to Mughals, from Mughals to the East India Company : in all the mentioned periods administrative law was one of the most developing branches of law. Since, the administrative control and regulations formally emerged after the east india company established its control in the sub-continent, in that era, it needed the government to work efficiently so that the company could maximize its profits through exploiting the resources of the area, therefore regulations were made. In 1757 a centralized administrative system was formed to make laws. Thereafter many regulations were passed to take care of administrative justice system, one among them is Cornwallis Code, 1793. The other one is Section 108 of Regulation Act 1822 which required administrative agencies to record facts, evidence and decision. The court had power to control administrative actions but it paid great attention to the administrative decision. Till the end of British rule the Indian Government was concerned with the more primary duties only.
After the partition, both Pakistan and India developed their state constitutions, emphasizing greatly on the government’s responsibility to ensure the well being of an individual. Pakistan’s constitution entails the human rights in chapter 1 of the constitution while article 199 gives the courts the power to enforce the protection of those rights.
After administrative reforms of 1973, independent tribunals were created to settle the disputes between the employees and government institutions, together with the formation of independent review agencies, such as the office of ombudsman, that settles the complaints of general public with the institutions of state.
In the modern day, the administrative law has evolved to incorporate the two key aspects, i.e what are the procedures followed by the administrative authorities? And what are the remedies available to a person affected by administration? To answer them the state today cannot detach itself from the socio-economic welfare of its people.
The Administrative Process
A state consists of three organs- legislature, judiciary and executive. The law provides only the outline of a program, and it is the responsibility of the Executive Branch, through the regulatory process, to translate the law into policy. This is a crucial part of the process for a grassroots organization, to assure that the implementation of the law is conducted in accordance with your intentions. While increase in state activities has meant increased work for all organs, yet the largest extension in depth and range of functions and powers has taken place at the level of executive-cum-administrative organ. It has become an administrative age with administrative organ having become predominant and on the ascendancy; its functions and powers have grown vastly over time.
Administration is the all- pervading feature of the life today. It makes policies, provides leadership to the legislature, executes and administers the law and takes manifold decisions. It not only exercises today the traditional functions of administrations, but other varied types of functions as well. It exercises legislative powers and issues a plethora of rules, bye laws, and orders of a general nature which is designated as delegated or subordinate legislation.
Powers of Adjudication:
The administration has acquired powers of adjudication over disputes between itself and private individuals and private individuals inter se, and thus have emerged a plethora of tribunals, diversified in structure, jurisdiction, procedures and powers, connected with the administration with the varying degrees and pronouncing binding decisions like the courts, whose powers have been diluted or excluded in several areas. The administration has secured extensive powers to grant, refuse or revoke licenses, impose sanctions and take action of various kinds in its discretion or subjective satisfaction. The law is usually broad by design, and the Executive Branch establishes specific policies and procedures to implement the law. Regulations are very specific. They may specify a program’s operating procedures; determine how funds may and may not be spent; determine qualifications for participation in a program; etc. The regulatory process provides an opportunity for interested parties to comment on and influence proposed regulations. To enable the administration to discharge effectively its rule making, adjudicating and other discretionary and regulatory functions, it has been given vast powers of inquiry, inspection, investigation, search and seizure, and supervision. In the words of Robson, the hegemony of the executive is now an accomplished fact.
Need of Administrative process:
Extension in functions and powers of the administration has let to the contemporary complex socio-economic problems which could be tackled best, from a practical point of view, only by administrative process instead of the normal legislative or judicial process.
Time, Technique and Expertise:
A legislative body is best suited to determining the direction of major policy, but it lacks time, technique and expertise to handle the mass of detail. This legislature has to content itself with laying down broad policies and to leave the rest to the administration. Thus has arisen need and practice of delegated legislation. Administrative adjudication has arisen largely because the multitude of cases arising for adjudication under the modern legislation needs to be decided expeditiously with the least formality and technicality, at the minimum cost, and by persons having specialized skills to handle such cases. The courts are not in a position to fulfill these conditions. So the administrative tribunals have come into vogue.
Evolution of new techniques:
Another advantage of the administrative process is that it could evolve new techniques, processes and instrumentalities, and acquire expertise and specification, to meet and handle new complex problems of modern society. An Administration has become a highly complicated job needing a good deal of technical knowledge, expertise and know how. Continuous experimentation and adjustment of detail has become an essential requisite of modern administration. If a certain rule is found to be unsuitable in practice, a new rule incorporating the lessons learned from experience can be supplied. The administration can do so without much delay. Even if it is dealing with a problem case by case, it could change its approach according to the exigency of the situation and the demands of justice. Such a flexibility of approach is not possible in the case of the legislative or judicial process.
In many cases, preventive administrative action may prove to be more effective and useful than punishing a person later on for a breach of law. Thus, inspection and grading of the foodstuffs by the state would answer the consumer’s needs more adequately than prosecuting the seller for adulteration later on after injury has been done to he consumers by unwholesome food.
Administrative Procedures in contemporary world :
In view of developments in the law-oriented world of today, the concept of administrative procedures is placed very high on the reform agendas. The present feeling of the bench and the bar in several parts of the globe is such that administrative procedures are viewed as institutional safeguards enforced through internal processes and mechanisms. These safeguards largely depend on a highly professionalized public bureaucracy, an adequate technique of administrative application of legal standards, a flexible, appropriate and economic procedure, easy access to public scrutiny and a constant play of criticism by an informed and lively bar.
The current emphasis throughout the world is on the development of a simple procedure of administrative hearings, which a client can understand and even participate in. Procedures are now seen as means to the end of fair implementation of government programmes and their efficacy is measured by their contributions to this end. This functional view of procedure argues in favour of flexibility. Conferences, use of stipulations, inspections, and tests are suggested as indispensable methods for achieving the efficient operation of governmental business. It is considered equally important for administrative procedure to provide mechanism that will not delay or frustrate substantive public administration programmes. Administrative procedures are basically concerned with the overall fairness and accuracy of decisions, with their efficient and low-cost resolution, and, in a democratic society, with participants’ satisfaction with the process.
Importance of Administrative Law:
The study of administrative law has great significance. The increase in administrative functions has created new complexity of relations between the administration and the citizen. There is not a moment of a person’s existence when he is not in contact with the administration in one way or the other.
Administrative law ensures the availability of legal remedies to the aggrieved persons against the administrators. Administrative law is used to bring about socio economic change. It has increasingly become important to control the administration, consistent with the demands of efficiency, in such a way that it does not interfere with impunity rights of the individual.
There is an old proverb that power corrupts and absolute power corrupts absolutely. Between individual liberty and the powers of the government there is an old age conflict. So there is a need for constantly adjusting the relationship between the government and the governed so that a proper balance may be evolved between the private and the public interests. Control mechanism must be evolved so as to ensure that the officials do not use their powers in an undue manner. It is the task of administrative law to ensure that the governmental functions are exercised according to law and adequate control mechanism exists to check administrative abuses.
The objectives of administrative law are to ensure legal control of administrative power and to provide protection to the individual against abuses of such power. Administrative law seeks to adjust the relationship between public power and personal rights. So there is a need of efficient administration. But efficiency of administration is not the only yardstick for good administration. Fairness to individual should also be achieved along with efficient administration. A fair administration is really good administration. This makes the study of administrative law important in every country. A careful and systematic study and development of administrative law may help to keep the administration in check and geared towards the larger public interest.
Concept of Rule of Law by Dicey
According to the definition put in by Dicey, the Rule of law is, “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative or even wide discretionary authority on the part of government”. He also claimed that England was ruled by law and law alone, also that in the English government, none enjoy any kind of discretion. Dicey asserted that where there is discretion, there is always a room for arbitrariness leading to the insecurity of legal freedom of the citizens.
Another important aspect which Dicey attached to the concept of Rule of Law was “equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law Courts”. Claiming further, he said that, Englishmen were all subjecting to the one and the same body of the law. He criticized the system of droit administrative i.e. a system in which there are separate tribunals for deciding cases between the government and the citizens, prevailing in France. He said that this system of having separate administrative tribunals was totally inconsistent with English tradition and customs.
This representation of the Rule of law prevailing in England by Dicey had a great impact on the growth of the administrative law in England as people did not accept the existence of the administrative law till very recently. Dicey was wrong in his analysis as even in those days, privileges and immunities were enjoyed by the Crown and thus the whole government under the constitutional saying “the king can do no wrong”. Also, he ignored the administrative tribunals which came into existence in 1885. The French administrative system he criticized, revealed by a study, was more effective in controlling the administration than the common law system.
Systematization of administrative law in England:
By 1915, after the famous case of Rice and Arlidge, Dicey became conscious of the existence or emergence of the administrative law in England. But even then, he asserted that there could be no droit administrative in England and the rule of law would be preserved.
Dicey unwillingly accepted the emergence of administrative law in England under force of circumstances. However, since then, in 1929, Lord Hewart, made a sarcastic attack on the expansion of administrative powers of legislation and adjudication, and warned about the opportunities widely developed for the misuse of the powers of the officials. He claimed that the bureaucracy had become the true rulers of the country.
Consequently, the Committee on Minister’s power (Donoughmore Committee) was appointed in1929, to consider the powers exercised by Ministers of Crown by way of:
- Delegated legislation
- Judicial or qusai-judicial decisions;
And to suggest steps to be taken that are necessary to secure the constitutional principles of the sovereignty of the Parliament and supremacy of Law. In the words of Cecil Carr, the committee was suppose to analyze that whether Britain had gone off the Dicey standard, and if so, what was the quickest way back.
The committee submitted its report in 1932. It found that nothing was wrong with the developments which were taking place except for the increasing opportunities for the misuse of power and therefore, made a number of suggestions to control this. The report highlighted three main defects in the existing system of administrative law:
- Inadequate provision made for publication and control of subordinate legislation
- The lacuna or space in the law caused by the inability of a subject to sue the Crown in tort
- The extent to which the control and supervision of administrative decisions were passing out of the hands of the court and were being entrusted by the Parliament to specialist tribunals and inquiries.
As a result of these findings, the House of Commons made a Statutory Instruments in 1944. In 1946, the Statutory Instruments act was enacted to tidy up matters of subordination legislation. It formulates rules for publication of statutory instruments and also regulates the laying procedure before Parliament.
In 1947, Parliament enacted the Crown Proceedings Act to ease up the law relating to civil proceedings against the Crown. The report of Donoughmore committee was the first step towards systematization of administrative law in England.
The Crichel down affair led to the appointment of the Franks Committee which looked into the system of adjudication by the administration. As a result of the committee’s findings, the Tribunal and Inquiries act was enacted in 1958. It led to the appointment of the council on tribunals and improvement in procedures regarding the working of the tribunals and inquiries in the country.
Other areas of the administrative powers left untouched was then covered by Justice, the English wing of the International Commission of Jurist, which published a report (Whyatt Report) in 1961 suggesting ombudsman system in England. In 1967, England adopted the ombudsman system.
- The concept of rule of law has been used to spell out many prepositions and deductions to restrain an undue increase in administrative powers and to create control over it.
- The concept of rule of law has given the countries practicing common law system, a philosophy to curb the government’s power and to keep it within bounds; providing standards to judge the extent of administrative law prevailing in the country at a given time.
- The Rule of law, traditionally, represents the exclusion of arbitrary powers, thus one can criticize the increase of arbitrary powers of the administration and can also advocate controlling it through procedures and other means.
- The Rule of law is associated with the supremacy of courts, hence argues that the Courts should have the power to control administrative actions.
- The basic principle of the rule of law is that the executive must act under the law i.e. the executive does not have the inherent powers of its own but its powers flow from the law. This principle is playing a vital role in all democracies. It also serves as the basic rule of the judicial review of administrative action.
- Because of Dicey’s thesis, the people of England were unable to see the growth of administrative law till they were rudely shaken by some powerful voices.
- Administrative law as a subject to study came very late on the scene because of the thesis of Dicey
- It created a negative and irrational attitude towards French system and the judicial control.
- Faith in the courts has stood in the way of adopting other more efficacious means of controlling the administration outside the judiciary.
French Droit administrative system and the administrative courts:
The French administrative system Dicey criticized, revealed by a study, was more effective in controlling the administration than the common law system. After a careful study of the French system, many scholars suggested that a better safeguard against the excesses of the administration can be found in adopting an administrative court on the line of French and German models. Following this New Zealand and Australia set up administrative divisions and administrative review tribunals.
Separation of Powers and Administrative Law:
The doctrine of “separation of powers” had a profound influence on the development of administrative procedure. The doctrine of separation of power is contained in the American constitution. It stresses the mutually exclusiveness of the three organs of the government. The legislature cannot exercise executive or judicial power; executive cannot exercise legislative or judicial power; and the judiciary cannot exercise the other two powers. The form of the government of the U.S., considered as the presidential, is founded on the theory that there ought to be separation between the executive and the legislature which is dissimilar from the system predominant in England or other states with the parliamentary form of government based on synchronization of the executive and the legislature. Of course, the doctrine of separation of powers does not apply rigorously even in the United States and some exceptions to it are recognized in the Constitution itself. For Instance, a bill passed by the Congress may be voted by the President, and to this extent, the President may be said to be exercising legislative functions. This exercise of some functions of one organ by the other is justified as checks and balances i.e. the functioning of one organ being checked to some extent by the other.
The doctrine of separation has impacted, and has itself been impacted by, the development of administrative law. In face of the new demands on the government to resolve many multifaceted socio-economic problems of the modern society, new institutions have been created and new procedures evolved by which the doctrine of separation has been largely diluted.( Khan,2000)
The aim of the doctrine is to guard against oppressive and subjective power of the state. The foundation underlying the doctrine has been that if all power is focused in one and the same organ, there would develop the hazard that it may ratify oppressive laws, implement them in a dictatorial manner and construe them in an illogical fashion without any external checks. Though, in the face of the complex socio-economic problems demanding solution in a modern welfare state, it may no longer be possible to apply the separation theory strictly, nevertheless, it has not become completely redundant and its chief value lies in emphasizing that it is essential to develop adequate checks and balances to prevent administrative arbitrariness. Thus, it may not be practical, by strictly adhering to the doctrine, to separate completely the adjudicatory function from other functions, but it may be possible to have some internal separation of the function of investigation and prosecution from that of adjudication within the same agency. (Khan, 2000)
Administrative action is a comprehensive term which may defy exact definition. It is a term of wide import which means many a things at the same time. Administrative actions may include administrative directions, administrative instructions and administrative functions. Hence, all transactions arising out of administrative process whether in the form of directions, instructions or functions, can be broadly describe as administrative actions.
Classification of Administrative Action
In modern time, the administrative process as a by-product of an intensive form of government which cut across the traditional classification of the governmental power and combines into one all the power which were traditionally exercised by three different organs of the state. Administrative actions can be classified into three broad categories.
- Rule making action or quasi-legislative action
- Decision making action or quasi-judicial action
- Rule application action or administrative action
Difficulty of classification:
The classification of administrative actions as quasi-judicial generally poses a difficult problem. There are numbers of administrative tribunals, such as industrial relation commission, Income Tax appellate tribunal, etc., which though part of the administration, act in the judicial manner for all the practical purposes. It is with regard to such authorities that the classification becomes difficult. Before undertaking any formulation of tests of classification, it should be remembered that different tests, discussed as under, apply for different purposes.
- Where certiorari and prohibition are sought on grounds of excess of jurisdiction, the tendency is to classify as “judicial” all actions unless they are purely legislative or ministerial in character or unless they entail the exercise of a wide policy discretion by the body which has neither the trapping of a court of a tribunal nor is required to decide lis inter partes.
- Where classification us required for deciding whether a body is required to act in accordance with the principles of natural justice the courts trend more warily.
- Where classification is required for determining whether an act or decision is judicial so as to attract for the competent authority, immunity from tortious liability provided he has acted in good faith, the concept of the judicial function can be very broad.
- Where classification is required for determining whether absolute privilege in respect of defamatory statement and report is attached to such bodies, it may be sufficient to establish the judicial character of the tribunal, to show either that it decides issues of a nature normally decided by the ordinary courts or that its constitution and procedures closely resemble that of the ordinary courts.
- Where classification is required for the purpose of determining whether the previous proceedings before an administrative authority bar subsequent proceedings in a court of law on the ground of “double jeopardy” the courts take a restricted view of the judicial function.
i. Rule-making actions or quasi-legislative action
It is the legislature which is the law-making organ of any State. It is the intention of all constitution makers that law-making must be exercised by those bodies alone in whom this power is vested by Constitution. But in the twentieth century today these legislative bodies cannot give that quality and the quantity of laws which is required for the efficient functioning of a modern intensive form of government. Therefore, the delegation of law-making power to the administration is a compulsive necessity. When any administrative authority exercise the law-making power delegated to it by the legislature, it is known as the rule-making action of the administration or quasi-legislative action.
Rule-making action of the administration partakes all the characteristics which a normal legislative action possesses. Such characteristics may include generality, prospectivity and a behaviour pattern based on a policy considerations and extends a right or creates a disability.
It is on the basis of these characteristics that one can differentiate between quasi-legislative and quasi-judicial action. A quasi-judicial action in contradistinction to a quasi-legislative action is particularly based on the facts of a case and declares a pre-existing right. However, in certain situations, like wage or rate fixing, it is not capable of easy differentiation.
Administrative rule-making action is generally controlled by the Parliament and the courts through legislature and judicial review respectively.
ii.Decision-making action or quasi-judicial action
Today the bulk of the decisions which affect a private individual come not from the courts but from administrative agencies exercising adjudicatory powers. The reason seems to be that since administrative decision making is also a by-product of the intensive form of government, the traditional judicial system cannot give to the people that quantity and quality of justice which is required in a welfare State.
Administrative decision-making may be defined as power to perform acts, administrative in character, but requiring incidentally some characteristics of judicial dispensation.
The donoughmore Committee on Minister’s Powers (1932) analysed the characteristics of a ‘true judicial decision’ and summed up the attributes the presence or absence of which stamped a decision as administrative decision-making or quasi-judicial action. The Committee was of the view that a true judicial decision presupposes a lis between two or more parties and then involves four requisites:
- Presentation of the case
- Ascertainment of questions of fact by means of evidence given by the parties.
- Ascertainment of questions of law on the basis of submission of legal arguments.
- A Decision which disposes of the whole matter by applying the law to the facts.
The Committee reported that a quasi-judicial decision involves the first two determinants though it may or may not involve the third but never involves the forth determinant, because instead of applying law to the facts, the administrative agencies apply policy, expediency or discretion to it.
This approach of the committee was misconceived because even the judges take into consideration the policy, socio-economic and political philosophy, expediency and discretion while deciding a case.
In the American approach, a court is where a judge sits as arbiter- impartial and with no interest in the suit between the two parties. The institution and presentation are the responsibilities of the parties. In an administrative decision, on the other hand, the judge is rarely one who is disinterested in the case and sits detached but so is the case with independent tribunals.
There was a time when the view prevailed that the rules of natural justice have application to a quasi-judicial proceeding as distinguished from an administrative proceeding. The distinguishing feature of a quasi-judicial proceeding in this behalf is that the authority concerned is required by law under which it is functioning to act judicially. Duty to act judicially was spelt out Rex v. Electricity Commissioners, by Lord Atkins thus:
Whenever any body of persons having legal authority to determine questions affecting the rights of the subjects, and having the duty to act judicially, acts in excess of its legal authority, they are subject to the controlling jurisdiction of the King Bench Division.
Lord Reid held that the duty to act judicially must arise from the very nature of the function intended to be performed and it need not to be shown to be super added.
iii.Administrative actions as rule application action
Though the distinction between quasi-judicial and administrative action has become blurred, yet it does not mean that there is no distinction between the two. The difference between quasi-judicial and administrative action may not be of much practical consequence today but it may still be relevant in determining the measure of natural justice applicable in a given situation.
Administrative action is the residuary action which 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 a right though it may affect a right.
No exhaustive list of such actions may be drawn; however, a few may be noted for the sake of clarity:
- Issuing directions to subordinate officers, not having the force of law.
- Making a reference to a tribunal, for adjudication under the law of industrial relations.
- Preventive detention, internment, externment and deportation.
- Fact-finding action.
- Requisition, acquisition and allotment.
Administrative action may be statutory, having the force of law, or non-statutory, devoid of such legal force. Though by and large administrative action is discretionary and is based on subjective satisfaction, however, the administrative authority is required to act fairly, impartially and reasonably.
A further distillate of administrative action is ministerial action. Ministerial action is that action of the administrative agency which is taken as a matter of duty imposed upon it by the law devoid of any discretion or judgement. Therefore, a ministerial action involves the performance of a definite duty in respect of which there is no choice. Collection of revenue may be one such ministerial action. Below references have been used to compile Administrative Law Project Report.
Administrative Law Project Report References
- The Law and the Constitution (5th), 217
- Davis, K.C Administrative Law, Text Edition 1971, pp 1-3
- Wade, H.R.W. Administrative Law. (Fourth Edition,1977). Pp 5-6
- Khan, H 2000, Principles of Administrative law, PLD Publishers; LHR
- Takwani C.K. Lectures on Administrative Law. (Lucknow: Eastern Book Company) 2007.
- Joshi K.C. An Introduction to Administrative Law, (Allahabad: Central Law Publication) 2006.
- P. Massey, Administrative law(Eastern Book Company),2008