Administrative Law: Interactive Learning Module

Exploring the Dynamics of Public Administration and Governance

Unit I: Introduction to Administrative Law

Administrative law, as a branch of public law, governs the relationship between the state and its citizens. Its primary purpose is to regulate the exercise of power by the executive branch of government and administrative agencies, ensuring they operate within legal limits and protect citizens from arbitrary actions or abuse of power. This unit explores the evolution, definitions, purposes, scope, and sources of administrative law, with a focus on the Ethiopian context.

Evolution of Administrative Law: From Police State to Welfare State

The evolution of administrative law is closely tied to the transformation of the "police state" (minimal government intervention) into the "welfare state" (active government involvement in socio-economic life). The failures of laissez-faire policies in the 19th century, leading to widespread poverty and exploitation, necessitated a more positive role for the state. This expansion of governmental functions and powers, while aimed at social welfare, also brought the inherent danger of power abuse, thus necessitating administrative law as a control mechanism.

Police State: Minimal government control, maximum free enterprise. Role limited to protection (law and order).
Welfare State: Vast increase in government regulation, direct services, and ownership of industries. Aims for socio-economic justice.

Defining Administrative Law

Administrative law is difficult to define precisely due to the vast and diverse nature of administrative processes. However, key aspects include its concern with the *manner* of exercising governmental power and its ultimate *purpose* of controlling such power.

Massey's Definition:

"That branch of public law which deals with the organization and powers of administrative and quasi administrative agencies and prescribes the principles and rules by which an official action is reached and reviewed in relation to individual liberty and freedom."

Key Concerns of Administrative Law:

Studies powers of administrative agencies.
Studies rules, procedures, and principles of exercising these powers.
Studies controlling mechanisms of power (legislative, institutional, judicial).
Studies remedies available to aggrieved parties.

Purpose and Scope of Administrative Law

The primary purpose is the control of power, ensuring legality, fairness, accountability, and transparency in public administration. Its scope extends to public law functions (state-individual relations) but generally not to private law functions (individual-individual relations or state acting as a private entity).

Administrative law focuses on the *procedure* of decision-making ("how power is exercised") rather than the *substance* or merits of the decision itself.

Sources of Administrative Law in Ethiopia

The Constitution (F.D.R.E.): Provides broad principles of government administration, accountability, public participation, rule of law, and separation of powers.
Legislation: Laws adopted by parliament creating agencies or specifying procedures. Enabling acts define agency powers.
Delegated Legislation: Rules, directives, and regulations issued by the Council of Ministers and administrative agencies.
Judicial Opinion: Though less developed in Ethiopia, judicial decisions can influence administrative law, especially with the applicability of precedent.

Quiz: Introduction to Administrative Law

Unit II: Constitutional Foundation and Limitation of Administrative Law

This unit explores how constitutional principles, particularly the Rule of Law and Separation of Powers, impact administrative law. These principles serve as both foundational bases and limitations on the scope and exercise of administrative authority.

The Rule of Law as a Basis of Administrative Law ▼

The Rule of Law, derived from the French "la principle de legalite," signifies a government based on law, protecting citizens from arbitrary administrative action. It primarily means that every administrative action must be taken according to law (legality).

Dicey's Three Elements (Procedural):

Supremacy of Law (Principle of Legality): Absolute predominance of regular law over arbitrary power; government actions must be authorized by law.
Principle of Equality: Equal subjection of all classes to ordinary law, administered by ordinary courts. No special privileges for officials.
Constitution as Result of Ordinary Law: Constitutional principles are results of judicial decisions, not a separate bill of rights (English context).

Substantive Elements (Modern Concept): A wider concept developed by the International Commission of Jurists, implying that government functions should uphold human dignity. Includes representative democracy, social/economic services, personal independence, and an independent judiciary.

Rule of Law as Foundation: Administrative law ensures legality by controlling excessive and arbitrary governmental power, preventing ultravires acts (actions beyond legal authority) which are null and void.

Rule of Law as Limitation: It limits administrative law's scope to *legality* (how a decision was made) rather than the *merit* or *substance* of the decision, preventing courts from encroaching on executive policy.

Separation of Powers as a Limitation on Administrative Law ▼

This doctrine asserts that the legislative, executive, and judicial powers should be separate and distinct, with no single branch exercising the powers of another. While administrative agencies often blend these powers (e.g., delegated legislation, administrative adjudication), this is justified by practical necessity for efficient governance.

Implications for Administrative Law:

Violation (justified): Administrative law recognizes agencies exercising legislative and judicial powers, which technically violates strict separation. This is tolerated due to practical needs like time, expertise, and efficiency.
Limitation on Delegation: The principle limits the extent of legislative and judicial power that can be delegated to agencies. Essential legislative functions should remain with the legislature.
Limitation on Judicial Review: Courts should only review the *legality* of administrative actions, not their *merits* or policy considerations, to avoid encroaching on executive power.

Quiz: Constitutional Foundations

Unit III: Administrative Agencies: Subjects of Administrative Law

Administrative agencies are central to modern governance, affecting citizens' lives in numerous ways, from business permits to public services. This unit delves into their nature, meaning, classification, formation, purpose, and powers, highlighting their profound impact on administrative law.

Nature and Meaning of Administrative Agencies

Agencies are governmental entities that, while affecting rights and duties, are neither courts nor legislatures. They are primary tools for regulatory functions and have proliferated significantly, leading to the expansion of administrative law.

Defining an Agency: Difficult due to varying sizes, functions, and powers. Key elements include:

Nomenclature: Often named as department, authority, commission, bureau, board.
Power to Legislate/Adjudicate: Empowered to enact binding rules or make final decisions in adjudicatory proceedings.
Authority to Take Binding Action: The entity must have the power to make a legally binding decision.

In Ethiopia, a comprehensive definition is lacking, but determination often relies on nomenclature and the existence of legislative and/or adjudicative power.

Classification of Administrative Agencies

Agencies are classified based on their accountability:

Executive Agencies: Directly accountable to the executive branch (e.g., ministries, or ultimately the Prime Minister/Council of Ministers in Ethiopia). Their heads are appointed and dismissed by the Prime Minister.
Independent Agencies: Accountable to the legislature (e.g., House of Peoples' Representatives in Ethiopia). Their establishment often has a constitutional basis, and parliament appoints/removes their heads (e.g., Human Rights Commission, Ombudsman Office).

Formation and Reasons for Creation

Agencies are "creatures of the legislature," meaning they are established by statute. Even constitutionally mandated independent agencies require an enabling act from parliament for their legal existence.

Reasons for Creation:

Providing Specificity: Legislatures cannot legislate in minute detail; agencies fill gaps with detailed rules and handle numerous technical disputes (e.g., tax, labor).
Providing Protection: Agencies regulate sectors to protect the public from business failures (e.g., environmental protection, consumer protection, regulating monopolies like electricity/telecom).
Providing Services: Created out of necessity to administer public programs and services (e.g., roads, welfare, social security).

Powers of Administrative Agencies

Agencies derive their powers by delegation from a higher level of government, typically the legislature, through an "enabling act." This act defines the scope of their authority.

Agencies blend three types of governmental powers for efficiency:

Legislative (Rule-Making) Power: Enacting binding rules (delegated legislation) to implement primary laws. Essential due to legislative time/expertise limitations. Requires fairness, clear procedures (notice, public participation, publication).
Judicial (Decision-Making) Power: Adjudicating cases by applying law to facts, determining rights (e.g., license revocation, pension eligibility). Requires impartiality, fairness, and procedural safeguards.
Administrative Power: Residual power, neither legislative nor judicial. Concerned with particular situations, policy, and expediency. Examples include advisory functions and investigative powers (e.g., subpoenas).

Quiz: Administrative Agencies

Unit IV: Rule-Making (Quasi-Legislative) Power of Administrative Agencies (Delegated Legislation)

Delegated legislation refers to binding laws issued by bodies subordinate to parliament, such as administrative agencies and the Council of Ministers. While seen as a "necessary evil" due to its potential to challenge the separation of powers, it is indispensable for modern governance. This unit examines its nature, justifications, objections, scope, forms, and procedures.

Nature and Definition of Delegated Legislation ▼

Delegated legislation is the exercise of legislative power by a subordinate agency, acquiring this power from an act of the legislature. It includes rules, regulations, and directives with legal binding effect. It's a significant development in public administration due to its growth, complexity, and potential impact on individual liberty.

Distinguishing from Administration: Legislative power lays down general law for people, while administrative power applies law to particular situations. Legislative acts are generally public, prospective, and policy-based, whereas administrative acts are particularized and often based on evidence.

Need for Delegated Legislation (Justifications) ▼

Limitation on Parliamentary Time: Legislatures lack time to enact every detailed law needed for modern government.
Technicality of Subject Matter: Many issues require specialized expertise beyond that of general parliament members.
Flexibility: Allows for frequent adjustments and experimentation, crucial for dynamic social and economic issues.
Emergency: Enables quick and appropriate action during crises when parliamentary procedures are too slow.

Theoretical Objections against Delegated Legislation ▼

Doctrine of Non-Delegability: "Delegates potestas non potest delegari" - a delegate cannot further delegate their power. Legislative power, being delegated by the people, should not be redelegated to unelected officials.
Separation of Powers: Delegation of legislative power to the executive branch violates the principle that each branch should exercise only its assigned functions.

Despite these objections, pragmatic considerations have largely prevailed, leading to the acceptance of delegation within permissible limits.

Scope of Delegated Legislation ▼

While delegation is accepted, essential legislative functions and matters dealing with policy generally cannot be delegated. Agencies can only fill in gaps and handle subsidiary matters. The delegated legislation must be consistent with the parent act and its policy.

Non-Delegable Matters (Examples from Australia): Appropriations, significant policy questions, impact on individual rights/liberties, imposing obligations/penalties, creating offenses with significant criminal penalties, taxes/levies, amendments to Acts of Parliament.

Form and Classification of Administrative Rule Making in Ethiopia ▼

Delegated legislation in Ethiopia primarily takes two forms:

Regulation: Issued by the Council of Ministers, pursuant to power vested by the House of Peoples' Representatives (Art. 77(13) F.D.R.E. Constitution).
Directive: Issued by individual administrative agencies to implement regulations and primary legislation.

Classification by Purpose: Enabling acts, extension/application acts, dispensing/suspending acts (exemptions), classifying/sanctioning acts, penalty for violation acts.

Rule Making Procedure (England & U.S.) ▼

England:

Prior Consultation: Not always mandatory, but common practice. Mandatory if required by enabling act.
Laying Procedure: Instruments laid before Parliament for review (Bare Laying, Negative Resolution, Positive Laying, Laying of Draft). Ensures parliamentary control.
Publication: Debate on when an instrument is "made" and effective. Enabling act may mandate publication.

United States (Administrative Procedure Act - APA):

Provides a procedural roadmap for federal executive branch agencies.

Notice and Comment: Agencies must publish advance notice in the Federal Register, allowing public participation (written data, oral arguments).
Publication: Adopted rules published in Federal Register and Code of Federal Regulations.
Types of Rules: Procedural, Interpretative, Legislative (binding, require legislative authority).
Formal vs. Informal Rule-Making: Formal requires "on the record after opportunity for an agency hearing" (complex procedures). Informal has minimal procedures (notice, opportunity for written/oral submissions).

Quiz: Rule-Making Power

Unit V: Judicial Power of Administrative Agencies

Administrative agencies often exercise judicial (adjudicatory) powers, making binding decisions that affect individual rights. This unit explores the nature of agency adjudication, its forms (informal and formal), the role of administrative tribunals, and their advantages and disadvantages.

Meaning and Nature of Administrative Adjudication ▼

Agency adjudication refers to the process where administrative agencies make binding decisions that resolve specific factual disputes and apply legal rules, similar to courts. It's distinguished from executive and legislative powers by:

Conclusiveness: Decisions have binding effect without external confirmation.
Procedural Attributes: Follows preset procedures (formal or informal).
Interpretation & Application of Legal Rules: Decisions are based on pre-existing legal rules.

The FDRE draft administrative procedure uses "Administrative Decision" (Art. 2 Sub-Art. 2) for similar purposes, with specific exclusions (e.g., decisions on public servant selection, military/foreign affairs, legislative rules).

Forms of Administrative Adjudication: Informal vs. Formal ▼

Informal Adjudication:

Vast majority of cases.
Minimal statutory safeguards (e.g., APA requires notice and hearing, but hearing can be written submission or interview).
Relies on principles of natural justice and fairness (e.g., *audi alteram partem* - fair hearing; *nemo judex in causa sua* - no bias).
Requirements like adequate notice, full case information, adequate time to prepare, opportunity to present case are mandatory. Reasons for decision, cross-examination, legal representation may be discretionary depending on case nature.

Formal Adjudication:

Full-blown trial-type hearing, dictated by enabling legislation or other statutes, especially when significant individual interests are at stake.
Includes notification of charges/hearing, attorney representation, impartial tribunal, evidence presentation, cross-examination, decision based on regulation.
The U.S. Due Process Clause (Fifth and Fourteenth Amendments) ensures fundamental fairness, requiring greater procedural protections for greater impacts on "life, liberty, or property."

In Ethiopia, a uniform administrative procedure act is lacking, but specific enabling legislations and constitutional due process principles (like fair notice and hearing) provide safeguards.

Tribunals and the Tribunal System ▼

Tribunals (or administrative tribunals/courts) are bodies established outside ordinary courts to adjudicate disputes involving government agencies in their governmental functions. They find facts and apply legal rules, similar to regular courts, but often with simpler procedures and specialized expertise.

Hallmarks of Tribunals:

Independence from administration.
Capacity to reach a binding decision.
Decision by a panel of members.
Simpler procedure than courts.
Permanent existence.

Jurisdictional Issues:

General Jurisdiction (French Model): Hierarchical system of administrative courts (Conseil d'Etat, Cours Administratives d'Appel, Tribunaux Administratifs) with general jurisdiction over administrative matters. Strict separation from ordinary courts.
Special Jurisdiction (Common Law Model - Britain, Australia): Numerous specialized tribunals for particular fields. Australia also has a general merit review tribunal (AAT), but judicial review on points of law goes to federal/high courts.
Ethiopia: No integrated system. Has sector-wise tribunals (e.g., Civil Service Commission Tribunal, Tax Appeal Commission) and some regional tribunals. A draft Federal Administrative Procedure Proclamation aimed to establish a Federal Administrative Grievances Appellate Court.

Advantages of Administrative Adjudication:

Cheap, accessible, informal, speedy justice.
Specialized expertise (panels with specific skills).

Disadvantages:

Lack of legal expertise (non-lawyer panel members).
Potential for partiality/bias (members may be agency employees).
Violation of separation of powers and rule of law (transferring judicial power).

Quiz: Judicial Power of Agencies

Unit VI: Controlling Mechanisms of Governmental Powers

The concentration of administrative, legislative, and judicial powers in administrative agencies, while necessary for modern governance, necessitates robust control mechanisms to prevent abuse and protect individual liberty. This unit explores various internal and external methods for controlling governmental power.

Need for Control

The fear of arbitrary control due to merged powers (as per Montesquieu) and the discretionary nature of administrative powers demand legal and institutional devices for control. The principle of separation of powers, though not strictly applied, aims to prevent any single branch from becoming too powerful, promoting checks and balances, liberty, and good governance.

Control mechanisms improve decision-making quality, enable citizens to test legality/merits, ensure government acts within lawful powers, provide justice in individual cases, and contribute to accountability.

Types of Controlling Mechanisms

Internal Control:

Review of original agency decisions on their merits within the same organizational structure (e.g., by superior officials). Allows agencies to reconsider and rectify mistakes. Can be formal (legislated) or informal.

External Control:

Limitations imposed by authorized bodies outside the agency structure. Includes:

Parliamentary/Legislative Control
Executive/Political Control
Control by Administrative Tribunals
Judicial Control
Control by Watchdog Institutions (Ombudsman, Human Rights Commission)
Mass Media Control

Parliamentary Control (Britain, U.S., Ethiopia) ▼

Britain:

Laying the Instrument: Delegated legislation laid before Parliament for review (e.g., Bare Laying, Negative/Positive Resolution).
Scrutiny in Committee: Joint Select Committee on Statutory Instruments scrutinizes regulations for parliamentary debate.
Political Control: Informal consultation and publication requirements.

United States:

Appointment Process: Senate approves agency heads.
Power of the Purse: Congress reviews and approves agency budgets.
Congressional Oversight: Committee hearings, field reports, informal contacts to monitor agency performance.
Statutory Techniques: Legislation like NEPA (National Environmental Policy Act) and RFA (Regulatory Flexibility Act) impose procedural requirements to influence policy.
Legislative Veto (historically): Method to control agency rulemaking, though largely curtailed by Supreme Court decisions.
Congressional Review of Agency Rulemaking: Requires agencies to submit reports on "major rules" for congressional evaluation.

Ethiopia:

Supervisory Power: House of Peoples' Representatives (legislature) can question the Prime Minister and federal officials, and investigate executive conduct (Art. 55(17), 55(18) FDRE Constitution).
Budgetary Processes: Parliament reviews and approves agency budgets, can cut funding for poor performance.
Standing Committees: Visit institutions to observe performance.
Enabling Acts: Legislature defines agency powers, procedures, and structures.
Lack of Formal Procedure: No formal parliamentary control procedure for agency rulemaking (except Council of Ministers regulations). Draft Federal Administrative Procedure Proclamation aimed to address this.

Executive Control ▼

The executive branch (Prime Minister, Council of Ministers) oversees government offices. Executive-dependent agencies are directly supervised by the executive. The Council of Ministers determines the organizational structure of ministries and coordinates their activities (Art. 77 FDRE Constitution).

Indirect control over independent agencies exists through appointment approval (Art. 74(7) FDRE Constitution). Dual accountability systems (e.g., Council of Ministers accountable to PM and House of Peoples' Representatives) also provide oversight.

Control by Administrative Tribunals ▼

Administrative tribunals (administrative courts) supervise administrative agencies by undertaking "merits review" of their decisions. This means they determine if a decision is "correct and preferable" based on facts and law. If not, the tribunal can substitute it with a new decision. This ensures quality, efficiency, and effectiveness in government decision-making.