Constitutional Law and Administrative Law
Administrative law is categorized as public law since it governs the relationship between the government and the individual. The same can be said of constitutional law. Hence, it is undeniable that these two areas of law, subject to their differences, also share some common features. With the exception of the English experience, it has never been difficult to make a clear distinction between administrative law and constitutional law. However, so many administrative lawyers agree that administrative law cannot be fully comprehended with out a basic knowledge of constitutional law. As Justice Gummov has made it clear “The subject of administrative law can not be understood or taught without attention to its constitutional foundation”
This is true because of the close relationship between these two laws. To the early English writers there was no difference between administrative and constitutional law. Therefore, Keitch observed that it is ‘logically impossible to distinguish administrative law from constitutional law and all attempts to do so are artificial.”
However, in countries that have a written constitution, their difference is not so blurred as it is in England. One typical difference is related to their scope. While constitutional law deals, in general, with the power and structures of government, i.e. the legislative, the executive and the judiciary, administrative law in its scope of study is limited to the exercise of power by the executive branch of government. The legislative and the judicial branches are relevant for the study of administrative law only when they exercise their controlling function on administrative power.
Constitutional law, being the supreme law of the land, formulates fundamental rights which are inviolable and inalienable. Hence, it supersedes all other laws including administrative law. Administrative law does not provide rights. Its purpose is providing principles, rules and procedures and remedies to protect and safeguard fundamental rights. This point, although relevant to their differences, can also be taken as a common ground shared by constitutional and administrative law. To put it in simple terms, administrative law is a tool for implementing the constitution. Constitutional law lays down principles like separation of power and the rule of law. An effective system of administrative law actually implements and gives life to these principles. By providing rules as to the manner of exercising power by the executive, and simultaneously effective controlling mechanisms and remedies, administrative law becomes a pragmatic tool in ensuring the protection of fundamental rights. In the absence of an effective system of administrative law, it is inconceivable to have a constitution which actually exists in practical terms.
Similarly, the interdependence between these two subjects can be analyzed in light of the role of administrative law to implement basic principles of good administration enshrined in the F.D.R.E. constitution. The constitution in Articles 8(3), 12(1) and 12(2), respectively provides the principles of public participation, transparency and accountability in government administration. As explained above, the presence of a developed system of administrative law is sine qua non for the practical realization of these principles.
Administrative law is also instrumental in enhancing the development of constitutional values such as rule of law and democracy. The rules, procedures and principles of administrative law, by making public officials, comply with the limit of the power as provided in law, and checking the validity and legality of their actions, subjects the administration to the rule of law. This in turn sustains democracy. Only, in a government firmly rooted in the principle of rule of law, can true democracy be planted and flourished.
Judicial review, which is the primary mechanism of ensuring the observance of rule of law, although mostly an issue within the domain of administrative law, should look in the constitutional structure for its justification and scope. In most countries, the judicial power of the ordinary courts to review the legality of the actions of the executive and administrative agencies emanates from the constitution. The constitution is the supreme document, which confers the mandate on the ordinary courts. Most written constitutions contain specific provisions allocating judicial review power to the high courts, or the Supreme Court, including the grounds of review and the nature and type of remedies, which could be granted to the aggrieved parties by the respective courts.
A basic issue commonly for administrative law and constitutional law is the scope of judicial review. The debate over scope is still continuing and is showing a dynamic fluctuation, greatly influenced by the ever changing and ever expanding features of the form and structure of government and public administration. The ultimate mission of the role of the courts as ‘custodians of liberty’, unless counter balanced against the need for power and discretion of the executive, may ultimately result in unwarranted encroachment, which may have the effect of paralyzing the administration and endangering the basic constitutional principle of separation of powers. This is to mean that the administrative law debate over the scope of judicial review is simultaneously a constitutional debate.
Lastly, administrative and constitutional law, share a common ground, and supplement each other in their mission to bring about administrative justice. Concern for the rights of the individual has been identified as a fundamental concern of administrative law. It ultimately tries to attain administrative justice. Sometimes, the constitution may clearly provide right to administrative justice. Recognition of the principles of administrative justice is given in few bills of rights or constitutional documents. Australia and South Africa may be mentioned in this respect.
Constitutional law needs to be understood to include more than the jurisprudence surrounding the express, and implied provisions of any constitution. In its broader sense, constitutional law connotes “the laws and legal principles that determine the allocation of decision-making functions amongst the legislative, executive and judicial branches of government, and that define the essential elements of the relationship between the individual and agencies of the state”. Wade has observed that administrative law is a branch of constitutional law and that the “connecting thread” is “the quest for administrative justice”.
Administrative Law and Human Rights
Every branch of law has incidental effects on the protection or infringement of human rights, whether by constraining or enabling actions which affect other people. Administrative law is, however, particularly vulnerable to the permeation of human rights claims, since, like human rights law, it primarily constrains the exercise of public power, often in controversial areas of public policy, with a shared focus on the fairness of procedure and an emphasis on the effectiveness of remedies.
At an abstract level, there is a consonance of fundamental values underlying human rights law and administrative law. Both systems of law aim at restraining arbitrary or unreasonable governmental action and, in so doing, help to protect the rights of individuals. Both share a concern for fair and transparent process, the availability of review of certain decisions, and the provision of effective remedies for breaches of the law. The correction of unlawful decision-making through judicial review may help to protect rights. The values underlying public law – autonomy, dignity, respect, status and security – closely approximate those underlying human rights law. Moreover, each area of law has been primarily directed towards controlling ‘public’ power, rather than interfering in the ‘private’ realm, despite the inherent difficulties of drawing the ever-shifting boundary between the two. A culture of justification permeates both branches of law with an increasing emphasis on reasons for decisions in administrative law and an expectation in human rights law that any infringement or limitation of a right will be justified as strictly necessary and proportionate. There is also an ultimate common commitment to the basic principles of legality, equality, the rule of law and accountability. Both administrative and human rights laws assert that governments must not intrude on people’s lives without lawful authority. Further, both embody concepts of judicial deference (or restraint) to the expertise of the executive in certain matters. In administrative law, for example, this is manifested in a judicial reluctance to review the merits, facts or policy of a matter.
There are also marked differences between the two areas of law. Human rights law is principally concerned with protecting and ensuring substantive rights and freedoms, whereas administrative law focuses more on procedure and judicial review attempts made to preserve a strict distinction between the legality and the merits of a decision. Human rights law protects rights as a substantive end in themselves, whereas administrative law focuses on process as the end and it may be blind to substantive outcomes, which are determined in the untouchable political realm of legislation or government policy. It is perfectly possible for a good administration to result in serious human rights violations (and conversely, compatibility with human rights law does not preclude gross maladministration).
Human rights law is underpinned by the paramount ideal of securing human dignity, whereas administrative law is more committed to good decision-making and rational administration. The three broad principles said to have underpin administrative law are largely neutral on substantive outcomes: administrative justice, executive accountability and good administration.
The traditional emphasis of administrative law on remedies over rights reverses the direction of human rights law, which may provide damages for the breach of a right, whereas this is not the natural consequence of invalid action in administrative law. At the same time, administrative law remedies may still guarantee essential human rights; an action for release from unlawful detention (habeas corpus) can secure freedom from arbitrary detention, and an associated declaration by the courts may provide basis for pursuing compensatory damages in a tortious claim for false imprisonment.
Administrative Law and Good Governance
Administrative law plays an important role in improving efficiency of the administration. The rules, procedures and principles of manner of exercising power prescribed by administrative law are simultaneously principles underlying good governance. They also share a common goal. One of the common destinations of administrative law and good governance is the attainment of administrative justice. The set of values of administrative justice which mainly comprises openness, fairness, participation, accountability, consistency, rationality, legality, impartiality and accessibility of judicial and administrative individual grievance procedures are commonly shared by administrative law and good governance.
Administrative justice is considered as having two themes. First, it comprehends the range of entities which deliver complaint and review services and assurances of those services to the citizen. Second, it comprehends the kind of resolution sought to be achieved. The attainment of administrative justice largely depends on the existence of efficient and effective institutions like the ombudsman, administrative tribunals and ordinary courts.
Review by the ordinary courts, judicial review, supports the legitimacy of the decision making process that it reviews. A decision-maker whose decisions are reviewable can claim that because the decision is reviewable for its legality, as determined by an independent judiciary, the decision has a legitimacy that it otherwise would not have. Its legitimacy lies on the fact that it is open to a dissatisfied person to challenge its validity.
It can also be said that a decision reached by a fair decision making process is likely to be a better decision. It is likely to be better because requiring the decider to hear both points of view can make a contribution to the soundness of the decision. But, beyond that, we have to acknowledge that judicial review does not have a great deal to contribute to the quality of decision making by the executive government. Its ultimate goal remains to be maintaining the rule of law.
Administrative law also helps to realize the three underlying principles of good administration: i.e. accountability, transparency and public participation. Accountability is fundamental to good governance in modern, and open societies. A high level of accountability of public officials is one of the essential guarantees and underpinnings, not just of the kinds of civic freedoms enjoyed by the individual, but of efficient, impartial and ethical public administration. Indeed, public acceptance of agovernment and the roles of officials depend upon trust and confidence founded upon the administration being held accountable for its actions. The administrative law system, when working properly, supplements and enhances the traditional processes of ministerial and parliamentary accountability in any system of government.
Accountability does not have a precise meaning. The underlying notion is that of giving an account or an explanation to a person or body to whom one is responsible. That part of it is clear enough. But the form or process of accountability, as that term is used in debate, varies widely. The process of accountability ranges from merely being subject to comment or criticism, through to loss of office, to personal liability for damage caused by a poor decision, and to prosecution for criminal offences. The discussion in which accountability is an issue is often confused because of the different processes and meanings of accountability. There is often a silent assumption that only certain processes of accountability, such as loss of office, represent true accountability. But, it is suggested that the underlying idea of accountability is that of giving an account or an explanation, and that it is necessary to recognize that the process of accountability can vary widely.
The accountability of the executive government for decisions made in the exercise of public powers may be manifested through different ways. By public powers it is to mean powers conferred by statute, and when the power is exercised in the public interest. This typically refers to decisions that are amenable to judicial review i.e. reviewable decisions.
Executive government refers to Ministers and public servants or government employees. Ministers are accountable to the electorate. They are called upon to explain their decisions, and can lose their parliamentary seat and hence their ministerial position. However, in practical terms, they are accountable to the electorate only as a group, not as individuals. If the party of which a minister is a member loses an election, the minister will lose office along with all other ministers. In that respect, the fate of the ministry is closely tied to the performance of the Prime Minister or Premier of his or her role. But this form of accountability cannot really be described as accountability for reviewable decisions. The link is too distant. This process of accountability is, in reality, not linked to the making of reviewable decisions.
Ministers are accountable to Parliament for reviewable decisions. They can be called upon to provide an explanation for, and account of their decisions. But, there is no convention these days of ministerial responsibility for reviewable decisions made by public servants. And, even at the level of reviewable decisions made by ministers, the control that the executive government exerts over parliament means that, in the ordinary sense, there is no effective accountability to parliament for particular reviewable decisions. Whether an adverse consequence flows from the making of a reviewable decision by a minister, or by a minister’s department,it depends upon political aspects of the decision, and the process of parliamentary accountability is a highly political one. This is not an effective form of accountability for decision-making. A similar comment applies to the accountability of an individual minister to the prime minister or premier who leads the Government of which the minister is a part.
Public servants are accountable to a departmental head, and sometimes to a minister, for reviewable decisions that they make. But, in a system in which most public servants can be punished or dismissed only for a case, erroneous reviewable decisions do not lead to sanctions against the decision-maker, unless the decision involves misconduct as distinct from mere error. Accountability involving loss of office or some formal punishment has only a slender link to decision making by ministers and public servants. To treat the executive government as accountable for the making of reviewable decisions, by a process involving loss of office, is erroneous. Neither ministers nor public servants are usually required to submit their decision-making processes to contemporaneous public scrutiny. There can be contemporaneous comment upon a decision that is being made or is anticipated. A comment may take place in parliament, or on the media, or elsewhere. There can also be retrospective scrutiny, in particular through judicial review, by merits review when legislation so provides, by an Ombudsman or use of freedom of information legislation. However, it remains true to say that the decision-making process of the executive government is not transacted in public.
It is also true that responsibility for reviewable decisions made by the executive government is often diffused. This is to mean that reviewable decisions made by the executive government are often made by a process of consideration and advice at various levels. Responsibility for a given decision may be diffused downwards to various advisers, or upwards to a departmental policy. For this reason, it is often difficult to identify a reviewable decision made by the executive government with a particular decision-maker. That can be a limit upon accountability. Ministers and public servants are not routinely required to give full reasons for a reviewable decision. Ministers and public servants are usually not personally liable for damage or loss caused by a poor decision. If a decision that goes beyond power is made, the decision-maker might then be liable in damages, but even then would usually be indemnified by the executive government. Decisions made by the executive government are, of course, subject to judicial review to determine whether they are made within power (jurisdiction), whether they are in compliance with the law, and whether they fair or natural justices. Some governments have also provided a process of review on the merits. Many reviewable decisions made by the executive government are subject to scrutiny by parliamentary committees, by an Ombudsman, or other institutions such as the Auditor General and the Ethics and Anti-corruption Commission.
Administrative law also ensures transparency in the conduct of government administration and the decision making process. One of the requirements of an open government is the right of individuals to obtain and have access to information. Government has to implement the right to get information through specific legislation. Freedom of information act, adopted in most democratic countries, affords citizens the right to have access to public documents and the right to be timely informed of decisions affecting their interests. Government cannot be held accountable and hence, subject to criticism unless it opens its door to citizens. The existence of freedom of information legislation by itself does not guarantee open government, rather a developed system of administrative law is needed for its proper implementation. Courts, through judicial review should be able to compel public officials denying citizens of their right to get information as provided by law. Institutions, like the ombudsman should also be able to give redress to the aggrieved parties whose rights are denied or violated by the administration.
In addition to this role of administrative law enabling citizens have access to government information, it also ensures openness in the decision-making process. Administrative adjudication should be conducted openly. An interested party should get prior notice detailing the nature of the case, time and place of hearing. The concerned agency proposing a certain measure should disclose all relevant evidence to that party. Such adjudication procedure allows the party to prepare his defense and generally create public confidence in the fairness of the decision- making process.
Similarly, the administration should be transparent in the rule-making process. Before an agency, through its delegation power issues a certain rule or regulation having a binding effect, it is required to make the proposed rule or regulation accessible to concerned parties for commenting and criticism. Once an administrative rule is legally issued, it should be officially published so that the public could know its content, and if necessary challenges its legality and validity.
Such adjudication and rule making procedures fall within the proper scope of administrative law. Some countries such as America, have introduced a comprehensive and detailed administrative procedure to make the decision-making process open and fair. Other countries, without adopting a comprehensive administrative procedure, have introduced specific procedures for the respective administrative action by the agency.
Such procedures do not only make the conduct of government open to the citizen, but also facilitate public participation in the administrative process. In a state founded on democratic principles, it is axiomatic that the basic human right (beyond access to the necessities of life) is the right to participate in civil society. Indeed, the very notion of representative democracy is predicated upon people exercising their civil rights.
In any system of government representative, democracy, for its lifeblood depends upon the participation of the public. Anything, therefore, which is likely to increase public participation in government, or in governmental decision-making processes is a good thing regardless of the merits or demerits of an individual decision. Obviously, public confidence in the institutions of government is a central concern, for without it, there is likely to be little inclination to participate. And without a public perception that one will be treated fairly by the government, it is doubtful that the confidence necessary to engender a keenness to participate will exist. Fairness in the decision-making process creates public confidence and motivates citizens to engage in active and meaningful participation in government administration.
Administrative law lays down the legal framework by which public’s participation is recognized and practically implemented. The principle of public participation as an element of good administration allows citizens to have their say or their voice be heard in the conduct of government administration. In a developed system of administrative law, agencies are required to observe minimum procedures while making judicial decisions or issuing rules and procedures. The principle of natural justice which mainly requires an individual’s defence be heard and get an impartial and fair treatment in the adjudication process acts as a stimulant for public participation indirectly creating public confidence. Unless the public gets a positive impression that the decision making process is fair and impartial, it will be discouraged to participate in other aspects of public affairs seriously.
The rule making procedure, on the other hand, it directly affords an opportunity to participate in the legislative process. One of such procedural requirements is the obligation to conduct consultation with concerned parties. Such consultation may be manifested through conducting an open hearing, collecting suggestions, comments and criticisms on the proposed rule or regulation. The concerned agency is further required to take comments and suggestion from interested parties as an input in the proposed rule. In some cases, it may be required to prepare a statement of reason indicating those comments incorporated, or submit a justification for the reason that were disregarded.
Administrative Law and Democracy
True democracy states that the executive government would be accountable to the people. The various aspect of accountability and the role of administrative law in ensuring accountability in government administration have been discussed above. The term accountability is uniformly applicable to all branches of government: parliamentary, judicial and executive accountability. Even though administrative law is concerned with executive accountability, for a true democracy to flourish, accountability should be manifested in all branches of government. For instance, the executive branch is accountable to parliament. It is an idea which is fundamental to the operation of responsible government. Accountability is accountability to parliament and, and the parliament is the place within which the idea of public scrutiny must find its fulfilment. However, unless parliament strongly challenges the executive and takes appropriate measures, members of parliament themselves should be held accountable to the people for their failure to act according to the interest of the public.
Another meeting point of administrative law and democracy is the principle of rule of law. Administrative law is rooted in the principle of rule of law. Rule of law, in turn nourishes democracy. Every truly democratic system of government rests upon the rule of law, and no system is truly democratic if it does not. There are at least two principles that are most important for a constitutional government. The first is that the government should be subject to the rule of law. The government should mostly and particularly comply with the basic laws establishing its constitutional structure. The second is that the government should be democratic. These two principles can overlap. For example, a democratic system, particularly one involving representative democracy, requires for its proper working that certain civil liberties be recognized, protected and applied, including rights to freedom of speech, freedom of assembly and freedom of association. However, the recognition and protection of these rights necessarily require that elected governments should comply with the laws, including the common law, that protect those rights. Consequently, within a government characterized by representative type of constitutional structure, the rule of law reinforces the democratic principle.
The two principles can also be in conflict. A conflict occurs when the rule of law is inconsistent with the democratic will. Historically, such conflicts were resolved at common law by judicial review. Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which the executive action is prevented from exceeding the powers and functions assigned to the executive by the law and the interests of the individual are protected accordingly. In order for a government to be both democratic and subject to the rule of law, the government must be accountable, to the electorate and the courts. But, unless the scope of judicial review is properly limited so as to be in harmony with the principle of separation of powers, it may encroach upon the values of democracy.
The conflict between democracy and administrative law is also reflected in the challenge to justify the democratic basis of administrative agencies and administrative decision-making. Administrative agencies make individual decisions affecting citizens’ lives and also set general policies affecting an entire economy, though are usually headed by officials who are neither elected nor otherwise directly accountable to the public. A fundamental challenge in both positive and prescriptive scholarship has been to analyze and different administrative decision-making from the standpoint of democracy. This challenge is particularly pronounced in constitutional systems such as that of United States’ in which political party control can be divided between the legislature and the executive branch, each seeking to influence administrative outcomes. Much work in administrative law aims either to justify administrative procedures in democratic terms, or to analyze empirically how those procedures impact on democratic values. A common way of reconciling unelected administrators’ decision-making with democracy is to consider administrators as mere implementers of decisions made through a democratic legislative process. This is sometimes called the ‘transmission belt’ model of administrative law. Administrators, under this model, are viewed as the necessary instruments used to implement the will of the democratically-controlled legislature. Legislation serves as the ‘transmission belt’ to the agency, both in transferring democratic legitimacy to administrative actions and in constraining those actions so that they advance legislative goals.