Administrative law by tame (HU) (Legal Issues 🇪🇹).pptx

About admn law in Ethiopia

1. Administrative law Haramaya University College of Law Instructor: Tamene Ena .

2. Introduction Administrative law A branch of public law It governs the relationship between the state and its citizens It regulates the manner of exercising power by the executive branch of government and administrative agencies By controlling power, it provides protection to the citizens against ultra-virus acts, abuse of power and arbitrariness

3. Evolution of Administrative Law Political and economic circumstances that led to the creation of Administrative Law change in the role of government Transformation of the ‘police state ’ and laissez faire ideology of the 19th century to the ‘ welfare state ’ necessitated the need for conferring more power on the administration and simultaneously the need for controlling this power i.e . power vs. Control Function of the Police state protection from foreign invasion, levying of taxes and maintenance of internal peace and order

4. Cntd . Laissez faire doctrine Minimum government control, maximum free enterprise and contractual freedom Resulted in exploitation of workers, dangerous conditions of work and child labour which ultimately led to the spread of poverty and concentration of wealth in few hands The ‘ negative state ’ was then forced to assume a positive role “social welfare state” Modern welfare state Government regulation of privately owned economic enterprise Direct furnishing of services by government Increased government ownership and operation of industries and businesses

5. Definition of Administrative Law Different definitions because of: The divergence of the administrative process divergence of the scope of the subject in the continental and Anglo–American legal systems However, Any definition of administrative law should take two important facts Manner of exercising governmental power Functional approach i.e. The function of administrative law is controlling exercise of governmental power

6. Cntd .. Generally The definition of administrative law should : include control mechanisms and those remedies available to parties affected by an administrative action differentiate administrative and constitutional law Ex: if the definition entirely emphasizes on the organization, power and duties of administrative agencies to the exclusion of the manner of their exercise Not limit it self to judicial control of public officials but also governs legislative and institutional control mechanisms of power other types of quasi- administrative agencies like corporations, commissions, universities and sometimes, even private domestic organizations

7. Cntd … A working definition given by Massey: “ Administrative law is 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” From this, we may discern that administrative law studies about: powers of administrative agencies(executive, legislative or adjudicative) nature and extent to determine whether it is ultra-virus or abuse of power

8. Cntd .. procedures and principles of exercising these powers(principles of fairness, reasonableness, rationality and the rules of natural justice) Specific Procedure for each administrative agency a codified act applicable to all administrative agencies controlling mechanism of power legislative & institutional control and control by the courts through judicial review remedies available to unlawful and unjust administrative actions Mainly through judicial review, such as certiorari, mandamus, injunction and habeas corpus

9. Purpose of Administrative Law controlling the manner of exercise of public power to ensure : rule of law and respect for the right and liberty of individuals ( Administrative justice ) accountability, transparency and effectiveness in exercising of power ( Good administration ) participation by interested individuals and parties in the process of government a remedy for grievances

10. Sources of Administrative Law Administrative law principles and rules are to be found in: The Constitution The F.D.R.E constitution Transparency and accountability separation of powers (see also Articles 9(1), 12, 19(4), 25, 26,37,40, 50(9), 54(6)(7) 55(7), (14)(15), (17),(18),58,66(2),72-77,82,83,93,101-103 of F.D.R.E constitution)

11. cntd Legislation Laws adopted by parliament The law Having the effect of creating an agency is known as enabling act or parent act The enabling act : determines the limit of power conferred on a certain agency administrative action exceeding such limit is an ultra virus in most countries the courts will be ready to intervene and invalidate such action Is expected to formulate minimum procedure as to how administrative rule making and administrative adjudication can be exercised. This can be done: by imposing a general procedural act applicable to all administrative agencies like the American Administrative Procedure Act ( APA) specific statutes applicable to different agencies

12. Cntd …. Delegated Legislation Non-essential powers of the parliament is delegated b/c of time constraint, technicality of the subject matter, Emergency and other practical necessity. Rules, directives and regulations issued by Council of Ministers and each administrative agencies These rules should comply first with the procedural requirements like consultation (public participation) and publication (openness in government administration) Judicial Opinion judicial analysis is the other sources In Ethiopia Only cases less than 1% go to court through judicial reviews The subject is not known by judges, lawyers, the legal profession and administrative officials

13. Scope of Administrative Law Public Law/Private Law Divide administrative law extend only when administrative agencies and public officials exercise statutory or public powers rules and principles of administrative law are applicable in a relationship between citizens and the state i.e. public law function ; they do not extend to cases where the nature of the relationship is characterized by a private law function Administrative contract is a private law function ( see civ. code art 3136 ff) If citizen works in gov’t owned factory, unlawfully dismissed vs if he is a civil servant or as to the legality of the decision of enlarging the gov’t owned factory on the ground of environmental pollution. N.B. the scope of AL law actually matters!!! Substance vs. Procedure administrative law is mainly on the manner and procedure of exercising power granted to administrative agencies by the legislature In judicial review the basic issue is not the merit of the decision but with the decision making process

14. Theories of Administrative law (judicial review There are two theories on how the court should respond to arbitrary and ultra-virus administrative decisions during judicial review proceeding A) Red Light Theory advocates strong role for the courts to review administrative decisions The function of the law to control the excesses of power Based it self on laissez faire ( minimal state intervention ) theory The best government is the one that governs least!!! The wider the power the more the danger to the rights and to the liberty of citizens

15. Cntd … B) Green Light Theory The function of the law is to facilitate the operation of the state by simplifying the procedures Intervention of the court in administrative process minimizes the efficiency of bureaucrats It is based on a utilitarian theory ( greatest good for the greatest number) the state is expected to provide the minimum standards of provision, including housing, education, health, social security, and local services Since the government is the service provider in wide respects, the law should be a facilitating tool The court is considered to be an obstacle for efficiency

16. Summary About theories of AL Red Light Theory Green Light Theory -control - Facilitate -high court role - Least court role Judicial supremacy - Parliamentary sup. Lassiez faire doctrine - Utilitarian doctrine N.B . The role of AL is supposed to be balancing the two goals ( control & facilitate )

17. Constitutional Law and Administrative Law Both are public laws governing the relationship between the government and the citizens & there by works for good admn and ad’ve justice . They differ in their scope, hierarchy & content as what they provide. Constitutional law generally deals with the power and structures of government, i.e. the legislative, the executive and the judiciary While administrative law is limited to the exercise of power by the executive branch of government The judicial and the legislative organs are relevant only when they exercise their controlling function on administrative power ( legal and judicial control ) Constitutional law, being a supreme law , formulated fundamental rights It supersedes all other laws including administrative law Administrative law does not provide rights , rather it is more of procedural.

18. Cntd .. They are interrelated The purpose of administrative law is to give protection to the rights and freedoms guaranteed by the constitution from arbitrary administrative decisions It gives effect to constitutional and democratic principles like separation of power, accountability and transparency (Art.12:1&2), public participation(8:3) and rule of law by making public officials, comply with the limit of the power and checking legality of their actions, subjects the administration to the rule of law in short, administrative law is a tool for implementing the constitution In most countries, Judicial review, though it is the primary mechanism of administrative law to control the power of administration, this power of the court originally emanate from the constitution The grounds, scope and the types of remedies of judicial review are determined by the constitution

19. Cntd … The scope of judicial review is the basic issue of both administrative and constitutional law The courts, as the custodians of liberty, unless counter balanced in their power of judicial review may result in unwarranted encroachment which have the effect of paralyzing the administration and endanger the principle separation of power Both have common mission i.e. to bring about administrative justice The principles of the constitution are aimed at administrative justice(democracy) Administrative law, by implementing the democratic principles of the constitution aimed at administrative justice too

20. Administrative Law and Human Rights Both aimed at administrative justice i.e. protection of human rights and dignity Their difference is that human rights law 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 The three principles of administrative law which are neutral on substantive outcomes are: administrative justice, executive accountability and good administration

21. Administrative Law and Good Governance Principles of administrative law ( openness, fairness, participation, accountability, consistency, rationality, legality, impartiality and accessibility of judicial and administrative individual grievance procedures) are simultaneously principles underlying good governance Attainment of administrative justice is the common goal of administrative law and good governance

22. Administrative Law and Democracy The principles of accountability (accountability of the executive organs to the parliament and to the courts i.e. judicial review in harmony with the principle of separation of power),rule of law and respect for the fundamental rights are the common principles of Administrative Law and Democracy But there is a conflict between the two i.e. Administrative decision-making has no democratic basis because the administrative officials are neither elected nor otherwise directly accountable to the public This conflict can be reconciled that administrators as mere implementers of decisions made through a democratic legislative process The legislature transfers democratic legitimacy by the law to the agencies so that they can implement the will of the parliament The legislation is called as the transmission belt

23. Administrative Law in Civil Law and Common Law Countries Why is the need to compare(comparative study of administrative law)? to understand better our own administrative law to stimulate our minds as to possible weaknesse s, and to assist legal reform to find creative solutions for problems in civil law countries(continental) France has a distinct system of administrative law known as ‘ droit administratiff ’ having an influence both on the system of administrative law of civil and common law countries

24. Cntd .. civil law countries like France, Italy and Germany have a dual court structure i.e. administrative and ordinary courts that means administrative law developed independently from other laws The highest administrative court is known as Conseil d’etat (council of state ), followed by tribunaux adminstratifs & cours administrative d’appel . The scope of administrative is wider. It covers issues like: structure and composition of the various administrative agencies legal requirements governing their operation the remedies available to those adversely affected by administrative action the acquisition and management of property by the administrative authorities public works, and contractual and non- contractual liability of administrative authorities and public officials

25. Cntd .. in common law countries (Anglo-American system) No dual court structure The ordinary courts decide cases involving the validity of government action Limited scope of administrative law. It is limited to: delegation of rule- making powers adjudication of administrative cases manners and procedures of exercising these powers the mechanisms of controlling and the available remedies It mainly focuses judicial review of administrative action by the ordinary courts Hence the study of composition and structure of administrative power is not its primary concern administrative actions which are a private law nature meaning relations arising out of contract by administrative authorities and their extra- contractual liability falls outside the scope of administrative law

26. Summary of AL in Civil & Common Law countries. Civil/Continental Common Eg . Fr, Gr , Italy -EG. USA , GB Dual crt structure - No dual crt structure Special court - Ordinary court Legislative supremacy – Judicial supremacy Wider in scope - Narrow in scope

27. Development of administrative law In general Differs from country to country according to its the political and socio-economic realities The proliferation of administrative agencies and growth of their power (legislative and judiciary) becomes the common factor the development of administrative law for all countries This calls for the law that protects the rights and freedoms of citizens from being endangered by the growing power of administrative agencies

28. Cntd .. As a result administrative law start to develop to limit the power exercise of administrative organs through various methods mainly by: . judicial interference ( judicial review ) In civil law (France ( droit administrative),Italy, Germany): there are specialized administrative courts entertaining administrative cases The Dual court system enabled for the better development of administrative law as compared to common law countries

29. Cntd .. Anglo-American system Judicial activism (America):the court besides having review power on decisions of the executive and administrative agencies, it have a review power on the constitutionality of the laws enacted by the parliament So there is said to be judicial supremacy Parliamentary supremacy (England): the court have a power of judicial review on the legality of the decision of administrative agencies There is no independent administrative courts in both of the above systems(this slow down the development of administrative law as compared to civil law countries)

30. Cntd .. Legislative interference By comprehensive administrative procedure act like APA, or By specific administrative acts defining the rule-making and judicial procedure of the agencies like the Ethiopian establishment proclamations Theses are parent acts mentioned before as one major material source of administrative law

31. Administrative law in Ethiopia In infant stage Increasing administrative power with less controlling mechanism So citizens freedom endangered(less administrative justice) Administrative law is scattered in the constitution and other specific establishment acts Enabling acts can not be fully termed as administrative laws because the merely grant legislative and judiciary power, the organ they establish with out elaborating the detail procedure for exercise of these powers which is the main mission of administrative law

32. Cntd .. Since administrative law share common principles with constitutional law , it is better to see the constitutional development of Ethiopia: The 1931 and 1955 constitution were meant to centralize the power of the government at the hand of the emperor Since there is no limitation of power in them ,no concept of administrative law There were some guarantees of fundamental rights in the 1955 constitution and above to wards establishing ombudsman in the 3 rd draft constitution of the emperor, but failed

33. Cntd .. The 1974 Derg constitution(Unitary regime) The 1995 FDRE constitution It lies the suitable ground for the future development of administrative law by providing the principles of administrative and constitutional law like accountability, transparency, public participation It also established institutions with the mandate of controlling administrative agencies like the Human right commission and the ombudsman(institutional control ) Realized 6 years after the constitution

34. Cntd .. Though we have no developed and effective administrative law, there is a slow move towards a control mechanisms of the power of administrative agencies: Legislative control Few rule-making and judicial procedures in the constitution and the parent( enabling acts ) Judicial control Almost non-existent No dual-court structure Regular courts entertain fewer cases coming from administrative tribunals based on legality Some Administrative courts are established under some of the administrative agencies with less efficiency(judges of less expetise,non -defined appointment and adjudicative procedure) Ex: tax appeal commission under ministry of justice

35. Cntd .. Institutional control(not developed and less effective) The Human right commission The ombudsman The development of the three of these institutions is essential for the citizens of Ethiopia Since we have the federal constitution establishing independent executive for the federal and state governments, there is a possibility of developing distinct administrative laws controlling the manner of power exercise by the federal and state governments

36. Unit-two Constitutional Foundation and Limitation of Administrative Law Rule of law as Constitutional Foundation of Administrative Law Principle of separation of powers as a Limitation to Administrative Law

37. Rule of Law as a Basis of Administrative Law The expression ‘ rule of law ’ has been derived from the French phrase ‘la principle de legalite ’, meaning a government based on the principles of law Rule of law : the law rules the action of the government the principle of rule of law serves as the foundation of the administrative law Elements of rule of law Procedural Elements (Principle of Legality) According to Dicey, rule of law comprises: Supremacy of the law : supremacy of the ordinary laws over the actions of public officials Acting as per the law does not satisfy the meaning of rule of law in the presence of wide discretionary powers. There may be arbitrary decisions within power(abuse of power) In England, administrative law regulates the wide powers, which acts of parliament confer very freely on ministers and other authorities(is it not out of the scope of administrative law?)

38. Cntd .. Principle of Equality equality before the law In England : the administrative disputes should be adjudicated by judges who are independent of the executive i.e. By ordinary courts Administrative tribunals should not interfere in adjudication power of courts ( separation of power ) In France( droit adminstratif ) administrative disputes are settled by separate administrative courts the conseil de etat being the supreme administrative court followed by court ad’ve de’appeal and ad’ve tribunals . So that ordinary courts will not interfere in the executive affairs(separation of power) Which system well justified by the principle of separation of power? (England or France)

39. Cntd .. Equal protection by the law the law should be even-handed between government and citizen laws governing the relationship between individuals should also similarly be applicable to the relationship between individuals and government Exceptionally , however, complexities of administration sometimes necessitate granting special powers ( privileges ) to the government unnecessary privileges, or exemptions from the ordinary law

40. Cntd … Substantive Elements The formal or procedural element of rule of law should have a positive results like: dignity of man is upheld beneficial social and economic services personal independency (privacy ) independent judiciary So rule of law is a means as well as an end in it self.

41. Cntd .. Rule of law also serve as a limitation on administrative law ( judicial review ) The court is expected to see or examine the legality of the action only The principle of the rule of law, by limiting its scope only to legality, or in some cases to fairness of the administrative action , simultaneously serves as a limitation to the scope of the administrative law

42. Summary as to how rule of law As constitutional foundation to AL. - by requiring Ad’ve agents to act only in accordance with the law ( parent act & APA) thereby ensuring procedural fairness ( as a means ) & substantive outcomes ( ensuring both the interest of the private individual and the public( as an end ). - As limitation on AL by limiting scope of JR to procedural aspect only.

43. Separation of Powers as a Limitation on Administrative Law According to Wade and Philips the theory of separation of powers signifies three formulations (in light of personnel & function ) The same person should not form part of more than one of the three organs of the government Ex: ministers should not sit in parliament One organ of the government should not interfere with any other organs of the government Ex: the executive should not interfere in the administration of justice by the courts One organ of the government should not exercise the functions assigned to any other organ Ex: the executive branch cannot legislate laws, and as well it cannot adjudicate cases.

44. Cntd .. But since the departments of the government are interrelated and dependent upon another Complete separation is found to be not possible Strict application of separation of power would bring government to a stand still and the development of modern administrative agencies (law) would have been impossible. Therefore, the true meaning of separation of power has been modified by practice i.e. the whole power of two or more departments shall not and should not be lodged in the same hand , and each department shall have and exercise such inherent powers as shall protect it in its performance of its major as well as minor duties

45. The Principle of Separation of Powers as a Limitation on Administrative Law administrative law violates the principle of separation of powers Because it recognizes the legislative and the judiciary power of administrative agencies in addition to their law enforcement power However, it has become a compulsive necessity to delegate the administrative agencies with additional legislative and judicial powers (functions) for the following reasons:

46. Reasons….. to ensure efficient and effective enforcement of laws(administration) lack of time and expertise in the legislature to provide laws necessary to solve a certain social or economic problem practically The courts lack technical and detail expertise for some administrative matters the trial process in the courts is lengthy, costly and rigid due to the complex procedural rules of the litigation Once again, practical necessities have prevailed over the principle of separation of powers

47. Cntd .. But granting legislative and judicial powers to agencies is an exception ( necessary evil ) and as it should be exercised narrowly i.e. only to the technical or detailed matters necessary to fill the gap in the law issued by the legislature Wider powers should not be delegated Essential legislative functions should not be delegated to agencies areas primary left to the legislature should not be delegated ordinary judicial powers should not be given to administrative courts It should be limited only to matters which are technical by nature and require expertise of the administration

48. Cntd …. Generally , the principle of separation of powers imposes limitation on the extent of legislative and judicial power of agencies The meaning of the principle of separation of power as shaped by the practice limits the scope of administrative law by limiting the extent of delegation On the other hand, the principle, like the rule of law, serves as a limitation on the scope of administrative law ( judicial review ) by making courts not to question the substance of administrative action, but only its legality If they go further to the merits of the case, they are in effect, encroaching the power of the executive

49. Unit-3 Administrative Agencies : Subjects of Administrative Law Nature of agencies: The 20th century witnessed for proliferation/an exponential increase of agencies with varying size, structure, functions and powers charged with the task of day-to-day governing Their existence and growth have been the typical characteristics of the modern administrative state ( welfare state ) This became the reason for the expansion and development of administrative law

50. Meaning of Administrative Agency Difficult to precisely provide a precise and concise definition covering due to : their wide ranging and complex functions their power to legislate and adjudicate in addition to their normal executive powers Two elements used to identify whether a certain government entity is an administrative agency or not The nomenclature : Most agencies have suffix in their names like department, authority, commission, bureau, board etc. The power :The entity should be empowered to l egislate (through delegation), or adjudicate individual cases, in addition to its merely executive functions And check whether there is any express exclusion from the above definition by the parliament

51. Cntd .. No comprehensive definition of an administrative agency in Ethiopia due to the absence of an administrative procedure act. Though some legislations like the income tax proclamation and the civil servants proclamation define a government agency as -an entity fully or partly funded by the federal government, this is unimportant to determine the status of an entity as administrative agency

52. Cntd … Resort has to be made to: its nomenclature, and mainly to the existence of legislative and /or adjudicative power of that entity. Similar definition in The Draft Administrative Proclamation of the Imperial government (draft proclamation No 251/1967 ) and that of the draft prepared by the federal government in Federal Adm’ve procedure procmn ...../2001 But in the drafts the power of the agency to legislate through delegation is missing as criteria The federal draft is just the translation of the imperial draft with some changes of terminology

53. Classification of Administrative Agencies Agencies are created with varying size, structure, functions and powers Some with wide powers : Ex: to regulate a certain sector of the economy like ministries They also supervise other lower agencies that are accountable to them Others are comparatively small in structure and are charged with a very specific task of implementing a certain portion of government policy or programme All under the direct control and supervision by the executive branches The remaining very small agencies function independently outside the direct control of the executive branch they are accountable to the legislature

54. Cntd .. Hence, Agencies can be classified based on such mode of accountability as: 1. Executive agencies : those directly accountable to the executive branch (to a certain ministry, or council of ministries, or the prime minister) Even though the enabling act may subject an agency to the control of another ministry, it is ultimately accountable to either the council of ministers, or to the prime minister because: the highest executive authority is granted to the Prime Minister and the Council of Ministers ( Article 72(1 ) of F.D.R.E constitution) the power of ensuring the implementation of laws, regulations, directives and decisions of the house of people’s representatives is also given to the same ( Art. 74(2) cum. 77(3) of F.D.R.E constitution ) This mainly include the power to follow up and supervise the activities, functions and exercise of power of specific administrative agencies

55. Cntd …. The executive controls the work of the agencies. How? An executive agency has also a duty to submit report of its activities to the higher executive organ The budget to be allocated to a certain executive agency is prepared and submitted to HPR by the executive most of the time the demand of the executive is affirmatively accepted by the house The Prime minister may freely appoint the head of an agency, and dismiss him/her at any time even without valid reasons

56. Cntd … They are Established through an enabling act upon the will of the parliament the parliament retains exclusive right to bring them into existence, to modify, increase, or decrease the power and function of that agency and to terminate that agency II. Independent agencies : those accountable to the parliament Their establishment is predetermined by the constitution i.e. their creation is not dependent on the will of the parliament But they need the act of the HPR for their material and legal existence The constitution clearly imposes a duty on HPR to establish independent agencies indicated in the constitution

57. Cntd ….. The independent agencies indicated in the constitution are: The Federal Ombudsman The Human Right Commission The National Election Board The Auditor General The Population and Census Commission

58. Formation of Administrative Agencies agencies are creatures of the legislature Even independent agencies will not have material and legal existence unless the HPR enacts a specific law for their establishment agencies are created in two ways : through the constitution , and In which the HPR has a duty to establish the agency specified in the constitution through the act of parliament (enabling act) The existence of the agency is dependent up on the will of the parliament

59. Reasons for the Creation of Agencies Agencies are with specific tasks given by the parliament The agency is created to avoid a certain problem in the society the main reasons for their establishment are: Providing Specificity The HPR enacts legislations using general language , Ministries and agencies are there to provide the detail and technical matters of the legislation This is because the HPR have no sufficient time to go through the details of the proclamation and its members lacks technical knowledge, so it delegates

60. Cntd .. Ex: details of Tax and customs matters are to be enacted by the council of ministers and the income and customs authority to fill the gaps in the relevant acts of the parliament Many agencies are created to refer a problem to experts for solution and management . Examples of such agencies with expertise beyond that of HPR or council of ministers are: The National Bank of Ethiopia Ethiopian Science and Technology Commission Intellectual Property Office

61. Cntd .. Courts also could not handle all disputes and controversies They simply do not have the time or the personnel to handle the multitude of cases Administrative tribunals or adjudicatory agencies have, specialized knowledge and expertise to deal effectively with the detailed, specific and technical matters, which are normally beyond the competency of judges of ordinary courts adjudicatory agencies (usually known as quasi- administrative agencies) are agencies created just to adjudicate like: labour relations board the tax appeal commission and the welfare (pension) appeal tribunal

62. Cntd .. Providing Protection Business has failed to regulate itself business could not voluntarily refrain from polluting the environment unreasonable increase in the price of essential goods Less quality of private higher education So due to this failure agencies are established to protect the pubic

63. Cntd .. Providing Services Many agencies are created simply out of necessity Ex: Ethiopian Roads Authority to build road infrastructure and regulate the traffic and use of roads The Ethiopian Social Security Authority is established to process pension payment and Welfare programs Ministry of Health To provide health services to the people

64. Structure and Organization The structure and internal organization of a certain agency is dependent on the size and type of power they are expected to exercise That means the enabling act influences the form of the structure The objective of the form of structure is aimed at ensuring efficiency and effectiveness in administration The determination of the structure of agencies is left to the executive branch(to experts)

65. Powers of Adm.ve Agencies The two of the three powers of administrative agencies i.e . legislative and judicial powers are - delegated (handed over) powers and not their inherent powers Their inherent power is executive power This delegation is done by the establishment acts providing the limitation thereto This might be broad or specific

66. The Enabling Act This statute, sometimes called an agency’s organic act, parent act, or establishment act It is the fundamental source of an agency’s power It is the fundamental document by which the parliament invalidate acts of the agencies which are out of their power Sometimes it contains provisions providing procedures for the exercise power by agencies besides its substantive mission but more often there is a general statue setting out procedural requirements for all agencies like the American Administrative Procedure Act ( APA ) of 1946 that uniformly governs the adjudicative and legislative procedure of administrative agencies

67. Cntd … In Ethiopia , no comprehensive specific procedural act exists but there were attempts like: The 1967 draft adjudicatory procedure act of administrative agencies Similar draft was prepared by the Justice and Legal System Research Institute( JLSRI ) So the individual agencies are obliged to establish or set their own policies and procedures for efficient and fair decision Its legal basis is the broadly phrased enabling acts leaving enormous leeway to fill both procedural and substantive gaps of the legislation ( discretionary power) The discretionary power of agencies is referred to as “the hidden component ” of administrative law

68. Admi.ve Agencies in Ethiopia The outstanding feature of administrative agencies in the history of Ethiopian government is their non-existence Agencies as a machinery of public administration is a recent phenomena in Ethiopia During Tewodros , the civil service system were introduced However, apart from the establishment of a territorial police force and a regular army , any specific agency charged with public administration was unknown and non-existent

69. Cntd …. Minelik (1907): created the first ministerial framework in Ethiopia the ministers bore the status of personal servants to the crown However, though autonomy was hardly realized and though delegation of usable power existed more on paper than in reality, a permanent administrative body was established as an integral organ of the central government

70. Cntd ….. The 1931 constitution recognised the existence of the executive branch of the government laid a foundation for the existence of the first administrative agencies in the Ethiopian history of public administration (Art.11 ) In 1962, the Imperial Ethiopian Central Personnel Agency (CPA): was given the power to classify jobs to recruit public servants , to establish pay scales and to issue regulations necessary for the establishment of homogeneous public service

71. Cntd ….. Until the fall of the imperial regime in 1974 , various administrative and chartered agencies w ere established bearing names of ministry, commission, authority or agency F.D.R.E constitution(1995 ) introduced a federal structure sharing power between the federal government and the regional states administrative agencies are established at the federal and state level

72. Cntd … The constitution does not make a reference to administrative agencies as parts of the system of government in effect, the source of legislative and judicial power of administrative agencies could not be easily justified on constitutional grounds ( no theoretical justification ) It does not allow the HPR to transfer some of its law making power to the agencies headed by unelected officials

73. Summary points about u-3 A.A = Naming + power /exclusions Types of A.A = Executive & independent A.A. Created by constitution or enabling act A.A. are created for providing ( Specificity, protection & basic services ) -The delegated powers of A.A. Lacks theoretical justifications but based on practical ground. Limitations to those powers can be specific or general via either APA or Enabling act(wide discretionary/hidden power).

74. Discussion of the three powers of the administrative agencies (Unit 4&5) Administrative/Executive Power Legislative (Rule Making) Power Judicial(Decision–Making) Power

75. Classification of Powers of Administrative Agencies they blend together three powers of government: executive, legislative and judicial powers ( tripartite powers ) So that they can realize their purpose efficiently and effectively (as necessary evil ) Critics : This is against the constitutional principle that laws are to be created by elected officials Agencies are exercising power that exceeding the 3 known branches of government

76. Cntd …. Response : agencies are created by the legislature through the enabling statute The legislature outlines the rule making and adjudicative procedure in the enabling or general a dministrative p rocedure a ct of agencies agencies include the public in their rule-making processes. Thus, by proxy(indirectly), agencies are acting the will of the electorate Agencies, by adjudicating minor and complex disputes quickly and flexibly than courts, thereby preserve judicial resources and promotes swift resolutions (speedy justice?) Opponents argue that swiftness and ease at the expense of fairness are not virtues (nor really speedy justice) Justice delayed is justice denied vs. justice rushed is justice crashed ( see this two legal maxims).

77. Executive (administrative) power of agencies It is a residual power that is neither legislative nor judicial It is the inherent power of administrative agencies concerned with the treatment of a particular situation It is devoid of generality It has no procedural obligations of collecting evidence and weighing argument It is based on policy and expediency It does not decide on a right though it may affect a right

78. Cntd … Administrative Power consists of: A) Advisory power includes: Submitting a report to the head hierarchically and to the legislature proposing a new legis lation to the legislature Informing the public prosecutor the need to take measure when there is violation of law Disclosing information to the public that should be known in the public interest publishing advisory opinions

79. Cntd .. B) Investigative power Investigating activities and practices that may be illegal in two ways By gathering and compiling information concerning the organization and business practices of any corporation or industry engaged in commerce to determine whether there has been a violation of any law By using the subpoena power A subpoena is a legal instrument that directs the person receiving it to appear at a specific subpoenaed time and place either to: Testify or to produce document Require reports Examine witnesses under oath Examine and copy documents Obtain information from other governmental offices This power of investigation complements the exercise of the agency’s powers, especially the power to adjudicate

80. Rule Making (quasi-legislative) power of Administrative Agencies Delegated legislation Delegated legislation is the exercise of legislative power by an agency that is subordinate to the legislature The power of agencies to enact binding rules which are subordinate or auxiliary (ancillary) to primary legislation In Ethiopia , it refers to directives and regulations issued by administrative agencies and the council of ministers , respectively

81. Theoretical Objections against Delegated Legislation 1. The doctrine of non delegability of power delegates potestas non potest delegari ) This common law maxim holds that power delegated to one branch may not be re-delegated to another which means that a delegate can not further delegates his/her power The peoples election of representatives based on their fitness, knowledge and ability to represent their interest will be useless

82. Cntd … 2. The doctrine of Separation of Powers the powers entrusted to one department should be exercised exclusively by that department without encroaching up on the power of another Delegated legislation is ‘legislative in form and executive in source’ Distinction between administrative power & quasi-legislative actions is that legislative power is the power to lay down the law for people in general It is the process of formulating a general rule of conduct without reference to particular cases and usually for future operation Administrative power is the power to lay down the law for them, or apply the law to them in some particular situation it is a process of performing particular acts or of making decisions involving the application of general rules to particular cases Quasi-legislative process partakes all the characteristics of a normal legislative process save some exceptions. These may be: Generality, Non-retroactivity, Based on policy consideration

83. The Need for Delegated Legislation It is accepted that a rigid application of the doctrine of non- delegability of powers or separation of powers is neither desirable nor feasible in view of the new role of the welfare state It can be fulfilled only through delegation for the following reasons : A) Due to lack of sufficient parliamentary time It relieves pressure or legislatures time so that it can concentrate on principles and formulation of polices By looking Art 58(2) of the F.D.R.E. constitution do you think the HPR has sufficient time to provide all the laws in quantity and quality taking into consideration the average time necessary to make law and the maximum days the HPR will sit in parliament?

84. Cntd .. B) Technicality Subject of Matter The parliament, confining it self to policy matters , should technical matters of the legislation to the agencies because the members of the parliament are not experts Agencies are involved in every area of government activity and affect the lives of ordinary citizens in many ways so they are experts in administrative aspects than the legislature Ex: “For the purpose of fostering monetary stability and credit and exchange conditions conducive to the balanced growth of the economy of Ethiopia, the Bank may issue directives governing its own credit transactions with banks and other financial institutions, and credit transactions of banks, and other financial institutions.” (Art 28(1) of Monetary and Banking Proclamation No.83/1994)

85. Cntd …. C) Flexibility It follows strict legislative procedures to make a single law but flexibility of detail laws according to the socio-economic demand of the society is necessary Effective administration requires promulgation of laws flexible to the existing situation (in quantity and quality) and dealing with technical matters Ex:“The Bank may, from time to time, prescribe by regulations the terms and conditions upon which persons departing from Ethiopia may carry with them foreign exchange or make remittance for services.” (Art 55 of Monetary and Banking Proclamation No.83/1994)

86. Cntd … D ) Emergency Under emergency situation speedy and appropriate action is required to be taken to cope up with the situations The parliament cannot act quickly because of the time that requires to pass a law immediately. knowledge and experience is only available with the administration For these reasons, wide legislative power must be conferred up on the executive to enable the government to take actions quickly N.B. Pragmatic considerations have prevailed over theoretical objections

87. Scope of Delegated Legislation No delegation is therefore not an issue in the present world Delegation of some part of legislative powers has become a compulsive necessity due to the complexities of modern administration The issue is the limitation on delegation The legislature cannot delegate its general legislative power Essential legislative functions cannot be delegated by the legislature matters dealing with policy are the essential ones What could be the general guideline to identify the essential legislative functions? See for the examples of essential legislative functions in Australia in the text book (pg.101)

88. Cntd … It should use the delegated legislation as gap filling to the primary legislation Only matters as procedures for the implementation of the substantive provisions contained in the principal legislation are to delegated. After the legislature has exercised its essential legislative functions, it can delegate non-essentials , however, numerous and significant they may be. The delegated legislation must be consistent with the parent act and must not violate legislative policy and guidelines Delegate cannot have more legislative powers than that of the delegator

89. Form of Administrative Rule Making In the delegated legislation there is an enacting clause Enacting clause is a provision in a legislation that indicates how and from where the authority of legislating the law was derived It is found in the preamble part of the legislation They are also considered as part and parcel of the main legislation under which they are issued in so far as they are enacted following the proper procedure These legislations are detailed because they are issued to implement superior legislations that are drafted in broader terms.

90. Cntd … Delegated legislation may assume different forms . In our country, there are two types of delegated legislations: Regulation The council of ministers has the power of issuing regulations in accordance with a power vested to it by the HPR ( Art. 77(13 ) of the F.D.R.E. Constitution) The power to issue regulations is found in the specific legislation The council of ministers has the power to declare emergency subject to approval by the HPR(Art.93 ). Can we say that this decree by the Council of Ministers is a delegated legislation? Directive Issued by each administrative agency Issued to implement regulations and other primary legislations

91. Classification of Administrative Rule Making It can be classified based on the different purposes t hat it is made to serve 1. Enabling act (to mean enforcing act ) Such acts contain an “ appointed date ” clause under which the power is delegated to the executive to appoint a date for the act to come into operation It should be understood to mean the delegated legislation is used to determine the date on which the legislation of the parliament comes into force the legislature prescribes the gun and the target and leaves it to the executive to press the trigger It is aimed at easing the executive the time to equip itself for the administration of the law

92. Cntd .. 2. Extension and reduction act Power may be delegated for the extension and reduction of application of an act in respect of a territory or duration of time Ex: “ Notwithstanding any provision of these regulations which may specify a period of time within which an act is to be performed, the licensing authority may for good cause provide for a shorter or longer period, provided that such reduction or extension shall not jeopardize the rights of a licensee or engender his ability to perform the duties and obligations under the license or under the proclamation.”(Art 42 of Mining Operations Regulation No 182/94) 3. Classifying and sanctioning acts The power may be given to the administrative authority to fix standard of purity, quality or fitness for human consumption Classification of Hotels, Pensions and Restaurants Regulations No 209/1995

93. Cntd … 4. Dispending and suspending act The power may be delegated to the authority to make exemptions from all or any provision of the act in a particular class of cases. These are meant to enable the administrative authority to relieve hardship, which may be occasioned as a result of uniform enforcement of the law Ex: “Not withstanding the provisions of rule - articles (1) of this article, the council of ministers may be regulations determine the inapplicability of this proclamation on employment relations established by religious or charitable organizations” (Art 3(b) of Labour Proclamation No 377/96) 5. Penalty for violation acts The power may be delegated to an agency to prescribe punishment for the violation of rules Usually, making an act penal is a parliamentary function and cannot be delegated to the administrative agency.

94. Ad’ve Rule Making Procedure For fair and lawful rule making procedure, the administrative agency is expected to follow some minimum rule making procedures The objective is to assure informed administrative action and adequate protection to private interests Is classified as either formal or informal Such procedure is usually provided in: a comprehensive manner applicable to every agency at all time (e.g. the American Procedure Act( APA ) ,or it may provide on specific legislations i.e. on the enabling act

95. Cntd .. In the present century, more legislation is produced by the executive government than by the legislature The 20th century has been termed as the age of regulation due to the increasing number of instruments issued by the executive branch of government. Most of the legislations that govern the conduct of the individual come from administrative agencies, not from the legislature This increase in quantity and quality of delegated legislation, if not supplanted by clear procedures and effective controlling mechanisms, may ultimately result in arbitrariness and abuse of power, which in turn leads to injustice and violation of liberty

96. Cntd … Rule Making Procedure in England Prior Consultation Not mandatory in principle unless provided expressly If not mandatory, failure to consult parties does not entail invalidity of the rules by court. But many agencies informally comply with this requirement upon their own initiative Laying procedure A procedure by which the parliament reviews the legality and fairness of the rule Mandatory to comply with non-observance results in the nullity of the rule or regulation

97. Cntd … It has different form : Bare Laying Procedure No further procedure is necessary for the provision to be effective. The statutory instrument is drawn to the attention of members and can come into operation once laid Negative Resolution Procedure The legislative instrument once it is laid before parliament may be annulled if there is a request (prayer) to this effect However, the annulment of the instrument does not invalidate retrospectively action taken by the ministry

98. Cntd …. Positive Laying Procedure The enabling act requires the instrument to be laid before parliament; it can only become law if it receives the affirmative approval of the parliament Laying of a Draft Statutory Instrument A draft instrument is laid before parliament, and the instrument itself cannot be made until 40 days have passed from the date of laying of the draft instrument During this period, the draft instrument may be subject to a negative resolution procedure

99. Cntd … Publication There are different arguments as to when a statutory instrument is “made” The statutory instrument is made as soon as it is signed by the appropriate minister , and it becomes effective from that time onwards notwithstanding that any publication or laying requirements have not been complied with The statutory instrument is made when it is signed, but only comes into effect on a certain date, on the order itself It is said that it becomes after it is signed and is due to become into effect on some specified date in the future, after one of the various laying procedures has been complied with so, there is no uniform procedural requirement of publication However, the enabling act may specifically provide for the publication requirement that is mandatory, resulting in invalidation for non-compliance

100. Cntd .. Rule Making Procedure in U.S. The Administrative Procedure Act (APA) enacted to regulate the rule making and adjudicative procedure of all administrative agencies except some which enact specific procedures with the aim of restraining the power of Ad’ve agencies/executive branch. The 1946, APA, had two structure- first, matters directly affecting legal rights of individuals-shall follow court like procedure/formal-hearing, cross examining, evidence recording, decision by independent adm’ve judges.

101. Contd. Second, concerning general policy matters i.e. making rules and regulations involves three ways: formal, informal and discretionary decision making Informal procedure involves- notice and comment seeking. But latter the procedure is modified to include - rule making record, - concise statement of general purpose, - right to seek judicial review for legality.

102. Judicial (Decision – Making) Power of Administrative Agencies There are tests to differentiate the judicial power of the agency from it legislative and administrative power These are : 1. Judicial decisions are conclusive and binding on the parties in dispute without awaiting for further confirmation by other authority judicial determinations are binding focusing on the resolution of factual disputes concerning a specific party But rules and regulations are also binding being general in their application

103. Cntd …. administrative decisions are also concerned to a particular case with binding nature So binding decision and specificity of the matter can not be the real difference 2. Availability of preset procedures (formal or informal) The adjudicative procedure is not arbitrary Is this the real differentiating factor ? Rule making has also a preset procedure 3 . The presence or absence of interpretation and application of legal rules for legal or factual controversies

104. Cntd …. Under APA, there are two types administrative adjudication: Informal Adjudication The justifications behind the delegation of judicial power The ordinary rules of procedure and evidences that govern court proceedings are not fully applicable to administrative tribunal proceedings If it is made formal the very purpose for delegation of judicial power will be defeated But provides the minimal statutory safeguards for the protection of fundamental rights of individuals

105. Contd.. Due process rights should be respected like: Notice and hearing The time, place, and nature of the hearing should be informed to the party concerned Opportunity for the submission and consideration of facts, arguments and evidences should be given ( not a full-blown hearing ) Depending upon the nature of the case in hand, a written submission of opinion, argument, data, or otherwise may suffice The rules of natural justice and fairness should be applied: no one should act as judge in any matter if he or she has some kind of vested interest. It does not necessitate oral hearing (because hearing in the majority of cases does not involve oral hearing, but written submission of opinions, arguments, data, and so on)

106. Formal Adjudication Having regard to the magnitude of the individual interest at stake, the enabling legislation may dictate the concerned administrative agencies to hold a formal hearing before passing decisions Formal adjudication involves the following: Notification of charges ; Notification of hearing ; Representation by an attorney ; An impartial tribunal/administrative law judge; Presentation of evidence ; Cross examination of the witness of the agency; A decision based on the regulation

107. Cntd .. In Ethiopia , no instrument that regulate administrative agencies’ adjudication process There is the 2001 draft federal administrative procedure proclamation but unknown reason remained as a draft for almost a decade But it can serve as an unbinding legal literature as the discretion of agencies We may find some judicial procedures in the enabling acts and in the FDRE constitution, though not adequate

108. Contd.. From the Draft , we have the following procedures preset for administrative adjudication notice and hearing to notify the cause of action of the case they intended to take, the time, place and nature of the hearing the right to submit documentary and other evidences to request agencies to summon witnesses, and to cross-examine the allegation of the other side to maintain the record to all proceedings and upon request to give the copy of the record to the parties or their representatives etc.

109. Tribunals and the Tribunal System The terms tribunals or administrative tribunals or administrative courts, as the case may be, refer to the forums where justiciable disputes that involve government agencies, in one or another form, are being adjudicated by a panel of impartial decision makers Tribunals are bodies established outside the structure of ordinary courts to adjudicate disputes that involve the government as a party The dispute could be between two or more government agencies, or between government agencies and one or more individual parties They find the fact and apply the law

110. Contd … There are critics against the designation “Administrative tribunal” It seems that the tribunal is created by the administration or that the tribunal resolves non- justiciable administrative disputes or that the tribunal is an appendix to the government agencies with no relative autonomy But all these critics does not stand valid. How? Try to find out by your self?

111. The Organizational Structure of Administrative Tribunals Administrative tribunals can be classified into two : General tribunals : tribunals having general jurisdiction Ex: in France there are tribunals of general jurisdiction that are hierarchically organized in a way that corresponds to the three-tier ordinary court structure. These are: A. The Conseil d’Etat (Council of State ) corresponding to the supreme court It exercises appellate and cassation powers over decisions of subordinate to administrative courts

112. Contd … It also plays an advisory role advising ministers and the head of state on the drafting of legislation and regulations and on administrative matters generally Administratives d’Appel (Administrative Courts of Appeal) corresponding to the High court Administratifs (Administrative Tribunals) corresponding to First Instance ordinary courts

113. Contd.. These administrative tribunals have general judicial jurisdiction on administrative matters falling under their respective material and local jurisdictions There are also special administrative courts where the appropriate expertise does not exist in a general tribunal But these special tribunals are still under the supervision of the Conseil d’Etat So, there is neither possibility of lodging appeal nor possibility for invoking judicial review against the administrative decision before regular courts

114. Contd.. Special tribunals : tribunals having special jurisdiction Most of the common law jurisdictions including England and Austria ) form tribunals of special jurisdiction here and there to address specific problems They do not have the French type system of administrative law and tribunals; but tribunals of special jurisdiction proliferated here and there

115. Contd.. In Ethiopia : The same thing seems true. We have special administrative tribunals exercising first instance and appellate jurisdiction. To mention some: First instance tribunals: these are some sector wise tribunal-like adjudicating agencies They are known by different names such as disciplinary committees, boards, commissions and so on They have the first instance jurisdictions in particular aspects of the administration

116. Contd.. Appellate tribunals : The Civil Service Commission Tribunal Assuming appellate jurisdiction on complaints of civil servants brought from the various gov’t organs or bureaus governed by the civil service law eg . Univ. Board to Civil serv . co The Social Security Appellate Tribunal Entertains appellate jurisdiction on complaints related to social security benefits The Tax Appeal Commission Hears tax related disputes on appeal

117. Contd.. The Labour Relation Board hears industrial/ labor disputes of collective nature between employers and employees although it may not fall within the technical definition of the term “administrative” tribunal as it is dealing with disputes between two or more individuals based on the ordinary substantive law of the country as contrasted to the administrative law In the Federal draft, an attempt was made to establish “ Federal Administrative Grievances Appellate Court”, which is a division within the Federal High Court that was intended to assume appellate jurisdiction over all final administrative decisions of all federal agencies

118. Jurisdictional Issues a clear demarcation has to be made between the jurisdictions of administrative courts and that of the ordinary courts disputes involving administrative agencies, which arise out of the conducts of public authorities , are in principle falling under the jurisdiction of administrative courts If the activity of public body was private in character, it is within the jurisdiction of ordinary courts--- Private law function .

119. The Advantages and Disadvantages of Administrative Adjudication Possibilities where a judicial function may be exercised by an organ other than the court is implied under Art. 37(1) and 80(4 & 5 ) of the Constitution advantages of Administrative Adjudication: Expediency : disposing cases timely It is cheaper than court adjudication It is flexible and informal compared to the rigid, stringent and much elaborated ordinary court procedures It is more convenient and accessible to individuals compared to ordinary courts special expertise knowledge administrative tribunals on administrative matters as compared to ordinary court judges

120. Contd.. Critics against Administrative Adjudication( disadvantage ): Members of the panel of the tribunal lack legal expertise Partiality : Since many of the members of the panel are at the same time employees of the various offices or agencies, they might not be free from bias and partiality towards the agency Violation of the principle of separation of powers : because adjudication is the primary business of ordinary courts— theortical objections .

121. Qualification, Appointment and Dismissal of Administrative Judges France : there are two distinct avenues of access to the Conseil d’Etat Examination: recruited from the National School of Administration Invitation :‘from outside ’ i.e. from the rank of those who have already distinguished themselves in the practice of public administration In Ethiopia , there is no general requirement set governing the qualification, appointment, composition and tenure of the personnel of administrative tribunals

122. Inquiries Inquiries are impartial fact finding devices that are established by law to assist decision makers ( ad’ve agencies or the parliament) They may have permanent or temporary existence that remain valid until accomplishing the specific fact finding assignment given to them by law Ex: the Inquiry Commission established under proclamation No.398/2004 to investigate the conflict occurred in Gambela Regional State on December 13,2003, and The inquiry commission established to investigate the proportionality of the measures taken by the Ethiopian security forces to control the post election crisis happened in 2005 But these are inquiries established to help HPR take an informed measure not an administrative agency

123. Contd … Inquiries may be established under the agency to conduct an inquiry or search facts by conducting preliminary fair hearing on objections raised against proposed administrative actions Based on the results of the fact finding, the inquiry recommends the concerned minister or agency to take or not to take a certain course of action, although the latter may not be bound by the recommendation involving policy considerations

124. UNIT-6 CONTROLING MECHANISAMS OF GOVERNMENTAL POWERS 1. The Need for Controlling the Powers of Administrative Agencies The concentration of tripartite power in the hand of agencies has already proved to be necessary(necessary evil) for certain socio-economic reasons The wide discretionary administrative power plus the delegated legislative and judiciary powers

125. Contd.. This accumulation of power avoiding the rationale behind the principle of separation of power i.e. check and balance poses a threat to the rights and freedoms of citizens So, the power concentration in one hand and the resultant possible abuse of rights necessitate to control the their powers

126. 2. Controlling Mechanisms The common ones are: Internal administrative review by superior officials External control Parliamentary/legislative control Political/executive control External administrative review by tribunals External scrutiny and recommendations by Ombudsmen and other watchdog institutions Judicial control Mass media

127. A. Internal control An internal review is a process by which original agency decisions are reviewed on their merits within the responsible government agency Decisions of the authorities within the lower structure of the administrative hierarchy are subjected to review by those in the next upper hierarchy It gives opportunity for agencies to reconsider their decisions and rectify the mistake. It may be formal i.e. established by enabling legislation or an executive order or informal i.e. the agency using its discretion can set informal controlling mechanisms in place

128. B. External control It refers to the various limitations imposed upon the powers of administrative agencies by other authorized bodies that are found outside the structure of such agencies It include: Executive/political control Parliamentary/legislative control Control by Administrative Tribunals Judicial control , Control by watchdog institutions and the Mass medias

129. B1. Parliamentary control The enabling legislation/parent act should not devolve wide delegated powers which may be difficult to control By conducting oversight hearings By reducing agency budgets By amending statutes The legislature may enlarge or contract the agency’s jurisdiction as well as the nature and scope of its rulemaking authority Read by your self about parliamentary control in Britain and US for comparative purpose

130. Contd … Parliamentary control in Ethiopia; the FDRE Constitution gave the power to HPR: To exercise supervisory power over the administrative organs of the federal government ( Art. 55(17 )) the power to call and to question the Prime Minister and other Federal officials and to investigate the Executive’s conduct and discharge of its responsibilities” Discuss any matter pertaining to the powers of the executive “at the request of one-third of its members” and “to take decisions or measures it deems necessary” Art . 55(18 ) To require the Prime Minister is required to submit periodic reports of the activities accomplished by the executive as well as its plans and proposals to the HPR (Art. 74(11))

131. Contd.. It may control also through: The budgetary processes i.e. to cut off the proposed budget of the concerned agency for the next fiscal year if it is not happy with the performance of the Agency records of the past and /or the current fiscal year The various standing committees of the parliament By visiting and observing the Agencies whether or not they are discharging their responsibilities to the level of their expectation in accordance with the law and bringing to the attention of the parliament any act that necessitates parliamentary deliberation

132. Contd.. By clearly defining their respective powers , procedures and structures in the enabling act In extreme cases the legislature is also at liberty to demolish the agency by another legislative act However there is no formal procedure by which the parliament can control the rulemaking power of the administrative agencies No publication of the directives An attempt to provide the rule-making procedure failed with the failure to adopt Draft Federal Administrative Procedure Proclamation No. 2001

133. B2. Executive Control There are possibilities whereby some administrative agencies may be formed by executive order without the blessing of the parliament These agencies referred to as executive dependent agencies are subject to the supervision of the executive organ of the government These agencies are responsible to the concerned Ministry Art. 77 of FDRE constitution The executive may exercise indirect control over the independent agencies that are accountable to the Legislative organ of the

134. Contd.. the Prime Minister has the power to select and submit for approval to the HPR nominations for posts of Commissioners and Auditor General indicating that the executive can have a sort of loose control over the independent agencies as well. Art. 74(7) of the FDRE Constitution What is the concept of dual accountability ? Why for? The council of ministers is made responsible both to the prime minister and the HPR Article 76(2) & (3 ) of the FDRE Constitution

135. B3. Control by Administrative Tribunals Administrative tribunals undertake merits review over the decision/action of administrative agencies as the neutral organ with regard to the rights of individuals. whether the decision is ‘ correct and preferable ’? Not only points of law but also point of fact

136. B4. Judicial control The judiciary can exercise its supervisory role in two modalities: they are different in terms of their source and the scope Judicial review: An inherent power of the court i.e. it is not necessary to get authorized by the law to obtain the review of administrative decision by the courts It is a review limited to the legality of the administrative decision i.e. with regard to the scope of the jurisdiction. Appeal review: It is statutory in origin i.e. Unless the specific law authorizes citizens to appeal against administrative decision, no appeal is allowed it is a merit review An appellate court may substitute a new decision by overruling the decision of the lower body

137. B5. Control by Human Rights Commission and Ombudsman These watchdog institutions have been relied on as alternative forums for controlling administrative agencies, especially on administrative matters that are not suitable for parliamentary deliberation and adjudication Appreciating this, the FDRE Constitution under Art. 55/14 & 15 dictate the HPR to establish the Human Rights Commission and the institution of Ombudsman respectively. The House established the Human Rights Commission and the Ombudsman in Proc. No. 210/2000 & 211/2000 respectively

138. Human Rights Commission Human Rights Commission(Established by proc. No.210/2000) Granted with broad powers of ensuring respect, Promotion and protection of Human Rights proc ( Art.6 ): To ensure that the human rights are respected by all citizens, organs of state, political organizations and other associations as well as by their respective officials To ensure that laws, regulations and directives as well as government decisions and orders do not contravene the human rights of citizens guaranteed by the Constitution To educate the public , using the mass media and other means, with a view to: enhancing its tradition of respect for, and demand for enforcement of, rights upon acquiring sufficient awareness regarding human rights

139. Contd.. To undertake investigation , upon complaint or its own initiation, in respect of human rights violation To make recommendations for the revision of existing laws, enactment of new laws and formulation of policies To provide consultancy services on matters of human rights To forward its opinion on human rights reports to be submitted to international organs and To perform such other activities as may be necessary to attain its objectives Though the opinion and recommendations of the commission are not mandatory , the reports it may issue manifesting human rights violations have far reaching moral and political overtone

140. Ombudsman The word “ ombudsman ” which is Scandinavian in origin can be translated as citizen’s defender or representative of the people Its objective is to bring about good governance that is of high quality, efficient and transparent, and are based on the rule of law , by way of ensuring that citizens rights and benefits provided for by law are respected by organs of the executive Why it is necessary to establish it ? Increase in the power of the government and the effect of their decisions on the daily lives and rights of the citizens Unjust decisions and orders of the executive organs and officials that prejudices the lives and rights of citizens have to be rectified or prevented ; Citizens having suffered from maladministration They should be supported by an institution which is easily accessible to them.

141. Contd … The Institution is entrusted with a broad range of powers and duties ( Art.6 ) Supervise that directives and decisions adopted by the executive organs and the practices thereof do not contravene the constitutional rights of citizens and the law as well Receive and investigate complaints in respect of maladministration Seek remedies in case where it believes that maladministration has occurred Undertake studies and research on ways and means of curbing maladministration Making recommendations for the revision of existing laws, practices or directives and for the enactment of new laws and formulation of policies, with a view to bringing about better governance and Perform such other functions as are related to its objectives

142. Contd.. What is Maladministration ? Curving maladministration became the reason the establishment and the future mission of the institution So, defining the concept enables institution to carry out its responsibilities efficiently and effectively within the domain of its power Lexical definition : The term maladministration is a combination of two words: ‘ mal’ and ‘administration ’ the term “mal” is a “prefix meaning bad, wrong, fraudulent” Thus, while prefixed with the term administration, it may give the meaning bad, wrong or fraudulent administration

143. Contd.. In Ethiopia , the term maladministration is equated with violation of laws Under Proc. No.211/2000 “ maladministration i ncludes acts committed, or decisions given, by executive government organs, in contravention of administrative laws, the labour law or other laws relating to administration ” In foreign jurisdictions , the term has a broad coverage beyond the mere violation of laws that involve the administration Decisions contrary to reason and conscience , although may not contravene any formal law, are included within the domain of administrative law i.e. “ any kind of administrative shortcomings” Hence, the term maladministration is a fluid concept which is amenable to time and the realities of each country

144. B6. Mass Media Control The media may also exert moral and political pressure on the day-to-day activities of the administration By bringing administrative malpractices and corrupt behaviours of the agencies to the attention of the public. It can serve as a forum for mobilizing public opinions concerning governmental activities Do we have the media doing the above? why? Go through Art.29 of FDRE constitution and see rights provided & the limitations imposed.

145. UNIT-7 JUDICAL REVIEW

146. Nature and meaning of JR The term ‘ judicial review ’ has different meaning and scope in different jurisdictions Ex: in US (broad ) judicial review refers to: The power of a court to review the actions of public sector bodies in terms of their lawfulness , or To review the constitutionality of a statute or treaty , or The power to interpret the constitution is given to the supreme court and as such the courts can invalidate the laws of the congress if they found it against the constitution Its base is in the landmark case, Marbury v. Madison

147. Contd.. To review an administrative regulation for consistency with a statute, a treaty, or the Constitution itself Based itself on the principles of judicial supremacy In UK (narrow JR ): English law does not know judicial review of primary legislation It is based on parliamentary supremacy Note: for the purpose of this discussion, the term judicial review is taken in its narrow sense It meant the power of the court to supervise/ control the legality of the powers of administrative agencies

148. Judicial review Vs. Appeal Review Merit/Appeal Review is statutory in its origin It is to decide whether the decision which is being challenged was the ‘ correct and preferable’ or ‘right or wrong’ decision If not, the reviewing body can overrule such decision and substitute it with a new decision it deems ‘correct and preferable’ under the given circumstance the person or tribunal conducting the review ‘ stands in the shoes ” of the original administrative decision maker It involve a review of all the facts that support a decision

149. Contd.. The power to conduct merits review may be conferred to a court (in the form of appeal ), a special tribunal, or a general administrative tribunal Judicial Review (technical review) is the inherent power of courts I.e. the source of judicial power is not statute But it can be taken away from the court by a statute Ex: in French, regular courts have no supervisory power over the activities of government agencies Regular courts cannot claim inherent power of judicial review to challenge administrative acts.

150. Cont’d It rely up on the principle that the court is concerned with the legality or illegality of the decision If the court finds out the decision is legal , it will not do anything on it even if the decision deems incorrect in terms of preference But if the court finds out the decision against which review is sought is illegal or ultra vires it can set it aside (quash) and order the concerned agency to reconsider the decision based on the directions of the court( remand the matter back to the original decision-maker ) The reviewing court does not substitute its own new decision in place of an agency’s invalidated decision on account of illegality

151. The Basis of judicial review There are two main sources of judicial review power of courts 1. From statutes(enabling acts )-This is only when there is express provision as an exception. Ex: In French , the law granted such power to administrative tribunals 2. From the inherent power of courts (common law ) It is inherent in the very fundamental principle of division of state power among the three organs of the government where by judicial power is ultimately vested in the regular courts The ordinary courts of US have such power i.e. no statutory authority is necessary: the court is simply performing its ordinary functions in order to enforce the law

152. Cont’d In Ethiopia It got its foundation from the fundamental principle of: Separation of power (judicial power is given to the courts as one arm of government) Rule of law No judicial review during the Imperial regime because the 1931 constitution conferred to the Emperor uncontested and boundless executive, legislative and judicial power The ultimate judicial power was dwelling in the hands of the Emperor and the Emperor himself, he was above the law of the empire In the 1955 Revised Constitution the ultimate judicial power remained in the hands of the Emperor intact, it could not have practical meaning

153. Contd … In the FDRE constitution , supreme judicial power under is vested in the Judiciary Art. 79(1) The judiciary, Being a final arbiter of the law, can review and annul administrative decisions on grounds of legality However, Ethiopian courts did not have the power to interpret the Constitution. This power was explicitly given to the House of the Federation in Art. 62(1 )

154. Contd … But this should not be construed to mean that courts could not invalidate an administrative decision or other subordinate legislation that contravened the clear words of the Constitution in circumstances where there is no need for interpretation . We have no full-fledged administrative tribunal systems like France Despite the existence of Article 79(1) of the same, judicial power is not exclusively vested in regular courts

155. Contd … Other bodies such as administrative courts can be established to assume judicial power on administrative matters Thus, it may not be labelled unconstitutional if Ethiopia adopts the French type model provided that it is preferable in terms of relevancy and feasibility having regard to the specific situations of the country For now, the power of judicial review may be derived from: the very principle of separation of power that vests judicial power in the judiciary and the doctrine of rule of law enshrined under the FDRE Constitution by way of interpretation just like the practice in the United States, at least, for the purpose of reviewing administrative decisions and subordinate legislations

156. Contd … In the absence of a systematically devised administrative reviewing mechanism like that of the French one, precluding the ordinary courts to review administrative acts on technical grounds renders the doctrine of rule of law meaningless Thus, implied in the principles of separation of power and the rule of law that are recognized under the FDRE Constitution is that and as the ultimate arbiter of justice , the judiciary has the power to test the legality of administrative acts The parent acts may also empower courts to review administrative decisions under specified conditions

157. Grounds of Judicial Review The rational behind the need for the determination of the justifiable grounds of judicial review is, thus, to delineate the boundary where judicial review may be available to challenge administrative decisions Different jurisdictions crafted their own standards or criteria that may render administrative decisions unlawful or illegal A. Simple (Narrow) Ultra Vires A1. Substantive Ultra Vires where the decision maker exceeds the power duly entrusted to him/her in the public interests or where the subject matter of the decision falls outside the jurisdictional limit of the decision-maker

158. Contd … A2. Procedural Ultra Vires When the decision of the agency is affected by procedural irregularities The procedural requirement may be: Obligatory procedural requirements: need strict compliance Ex: failure to comply natural justice and fair hearing(Due process rights) Directory procedural requirements: provide direction to the decision-maker to be followed in the discretion of the decision-maker in appropriate cases

159. Contd.. A3. Jurisdictional Error Whether or not a decision-maker does or does not have jurisdiction to make a decision is a question of law Jurisdictional error of law : arises when, due to the wrong interpretation of the law, the decision maker exercises a power over a subject matter that actually did not fall under its jurisdiction. Jurisdictional error of fact : happens while the decision-maker assumes jurisdiction over a subject matter in the absence of a certain fact that is set as a condition precedent to assume such jurisdiction

160. Contd …. A4. Failure to Discharge Statutory Duty An agency’s failure to discharge a statutory duty towards the designated beneficiaries can also give rise to judicial review Ex: in the area of pension and social security Enforced by mandamus

161. Contd …. Abuse of Power (Broad Ultra Vires ): those administrative decisions, although fall within the wide discretionary power of the decision-maker, may be found to be defective on the grounds of: Unreasonableness/ Irrationality Reasonable choice of action between more than one possible course of action upon which there is room for reasonable people to hold different opinions as to which is to be preferred Proportionality administrative measures must not be more drastic than it is necessary for attaining the desired result It can invoked as aground of judicial review n England, France A sever penalty for a small offence

162. Contd … Relevant and Irrelevant Considerations provided that if the irrelevant matter has been considered or the relevant one is ignored, a different decision or rule might (but not necessarily would) have been made. Bad Faith If it is unreasonableness or irrationality or taking irrelevant considerations in to account on the part of the decision maker

163. Limitations of judicial review 1. The cause of action should involve the exercise of public authority Decisions in the private capacity of administrative agencies is not subject to judicial review 2. Standing (locus standi ) the applicant must have sufficient interest in the matter to which the application relates It is a preliminary question, separate from the of merits of the applicant’s case only individuals or a group of individuals whose interest is substantially affected What about pressure groups and public interest litigation on behalf of their members and the public respectively? No consistent practice Its purpose: to ‘ filter out’ unmeritorious , frivolous or trivial applications, and thereby to save the court time

164. Contd … In Ethiopia; Under FDRE constitution Art. 37 Not clear enough whether or not they give room for public interest litigation but not rigid like the requirements of locus standi provided under our civil procedure code ( Art 33(2)). Those persons whose interest is directly and sufficiently at stake The Environmental Pollution Control Proclamation authorizes any one to institute a complaint before the concerned organ of the government without the need for showing locus standing

165. Contd … 3. Justifiability ( justiciability ) Justiciable matters are said to be suitable or appropriate for judicial appreciation. As courts are experts in law, it is justifiable to make them the final arbiters of law But on non justiciable controversies – controversies that are not capable of being resolved through the application or interpretation of existing laws Ex :political/ministerial decisions or purely administrative/managerial decisions are not suitable for judicial consideration Merits of administrative decisions It is not appropriate for the court to review on the merits of the decision on which it have no expertise. It may also be against the principle of separation of powers

166. Contd … 4. Exhaustion of remedies Exhausting all the avenues available in the concerned agency as a condition precedent Its aim is: To give opportunity to rectify their mistakes and resolve matters in light of their own policy objectives and priorities before judicial intervention To avoid premature intervention of the court on administrative matters and relieves the court from seized by over flooding administrative complaints The applicant may be dispensed from the requirement of exhaustion of internal remedy where: There is that ought to have been used by the complainant However, no suitable internal avenue Where there is an excessive delay on the part of the internal avenue of administrative agency, or There is a great possibility that the complainant will incur an irreparable injury awaiting agency review

167. Contd … 5. Ripeness Until the concerned agency gives its final decision on the subject matter, as a rule, judicial review may not be invoked A party cannot invoke judicial review against a speculated or hypothetical future decision, Case/matter have to be matured. Exception: If claim has urgent character that on delay itself may inflict irreparable injury, the controversy would be as ripe for judicial review The question in such cases is whether administrative inaction is equivalent to denying relief Where an agency excessively or unreasonably delays or withholds action/decision altogether, although no final decision has been made , judicial review can be invoked seeking appropriate remedy

168. Contd … 6. Finality Clause There are occasions where a statute may exclude judicial review of agency decisions expressly or impliedly. Although the source of the reviewing power of the court is not statute , such power can be excluded by incorporating a finality clause in a statute ( the Parent Act) Such exclusion has to be expressly stated if it is needed to have effect in limiting or eliminating the inherent power of the court

169. Contd … Ex: the decisions of the agency on such and such matters ‘ shall not be called into question’ or ‘shall be final’ Unless otherwise the finality clause incorporated in an Act expressly and clearly excludes judicial review of a decision passed under the Act, it has to be interpreted restrictively to mean no appeal can be lodged against the decision. This is because judicial review is seen as a basic right of citizens which the legislature can excluded only by the very clearest words What about in case of the legality of the finality clause that prohibits judicial review is questionable?

170. Contd …. In US , the Supreme Court can automatically invalidate the statute that incorporates such unconstitutional finality clause. In UK, the Parliament is sovereign The court cannot question the constitutional status of the law enacted by the Parliament So The law having finality clause expressly, even though such clause is illegal, the court can not do any thing.

171. Contd ….. In France: Statutes promulgated by the parliament cannot be subjected to judicial review (by administrative or civil court) for reasons of unconstitutionality This is the exclusive power of the Constitutional council In Ethiopia: Where the constitutionality of the finality clause is a matter of interpretation, this is exclusively the power of the House of Federation and as such it has to be referred to the House

172. Contd … But, where the finality clause as a plain fact contravenes any fundamental principle of the constitution, or even if the finality clause is presumed as if it were constitutional, but the administrative decision passed under its cover as a plain fact contravenes any higher law, it seems that it is a matter of policy advisable for the court to challenge the decision

173. UNIT-8 ADMINISTRATIVE LIABILITY And REMEDIES

174. Contd … Remedies are awards that may be granted by the reviewing court following an application for judicial review. A person complained against the agency decision has to include in his or her application for judicial review . Remedies can broadly be classified in to : 1. Public law remedies 2. Private law remedies certiorari (a quashing order), - injunction prohibition (prohibiting order), - declaration mandamus (mandatory order), - damages Quo Warrant, and Habeas Corpus Now a day, both are used as public law remedies

175. Public Law Remedies 1. Certiorari The writ of certiorari, also referred to as quashing order It is a procedure by which the reviewing court investigates the legality of an agency’s decision complained of, and will quash or nullify where the decision in question is found to be ultra vires . Effects of certiorari : there are two views Declaratory view : the order formally declares that, from the moment it was purportedly made (‘ ab initio ’) the decision had no effect in law Constitutive view : an illegal decision is valid until a court decides that it is illegal, at which point it can quash it with retrospective effect.

176. Contd ….. In practice , certiorari is not just declaratory in effect A person should act if he is authorized by the government He should not refuse on the basis of the illegality of the order until declared as such by the law If the person aggrieved because of the ultra- vires act should invoke judicial review with in the allowed period of time, after the expiry of the statutory period fixed for filing application for judicial review, the illegal administrative decision may be turned to legal. Where certiorari is granted by the reviewing court, the parties have to be returned to their original pre-decision position.

177. Contd …. 2. Prohibition Ordering an agency to refrain from illegal action( from behaving ultra virally any more) The difference between certiorari and prohibition Certiorari quashes what has been already done , ultra virally (Retrospective effect - nullifying an already made illegal or ultra vires act) Prohibition has a prospective effect - it stops the continuity of an ongoing course of action or restrains the execution of an already made decision Thus, while certiorari has nullifying effect , prohibition has preventive effect Both may be sought in conjunction Ex: certiorari to quash the decision in question and prohibition to prevent the execution of the nullified decision

178. Contd …. 3. Mandamus(mandatory order) It is designed to enforce the performance by governmental bodies of their duties It can be ordered in conjunction with certiorari Ex : certiorari (a quashing order) will quash the decision and mandamus (mandatory order) will compel a rehearing or force a decision-maker to take relevant considerations into account 4. Quo Warranto A process to challenge the legitimacy of titles assumed by government officials It is also applicable to challenge the usurpation (taking position illegally ) of offices assumed in the interest of the public It is sanctioned by declaration, injunction and financial penalties

179. Contd …. 5. Habeas Corpus(produce the body) It is used to obtain the release of someone who has been unlawfully detained. E.g. wrongfully arrested It is referred as the “ Great Writ” in common law because it maintained high reputation as a safeguard of personal liberty. Article 19(4) of FDRE constitution guarantees the same as inalienable right conferred to all persons detained, can be asked via Art 177 Civ.pro. code There is no need to get leave to get the remedy of habeas corpus under judicial review like the other public law remedies discussed above

180. Private Law Remedies They are so-called because they were originally used only in private law but later came to be used in public law Now are used in conjunction or as alternatives to the other public law remedies So, classification between private and public law remedies is merely historical and technical Technically speaking, prerogative (public law) remedies may be invoked by an application for leave for judicial review except Habeas corpus but this is not the case in most private law remedies

181. Contd …. 1. Injunction An order not to do a particular act It can be negative : i.e. forbidding a decision-maker from doing something), or Mandatory (i.e., ordering a decision-maker no to do something) Injunction can be used as interim or final relief An interim injunction (interlocutory injunction) is a provisional remedy granted pending the hearing of the case Its purpose is to prevent a party from continuing the actions complained of until a full hearing of the case As a rule, an interim injunction has to be granted where there is imminent danger of irreparable injury and damages would not be an adequate remedy

182. Contd … 2. Declaration asking the court to make a ruling on what the law is. Declaratory judgment: declares what the legal rights of the parties to the action are. purpose is to determining or ascertaining what the law says without changing the legal position or rights of the parties It declares what the law is or says in relation to a certain uncontested fact It differs from other judicial remedies in that it declares the law without any sanction and has no coercive effect

183. Contd … 3. Damages (compensation) Is to repair the pecuniary or non-pecuniary harm inflicted upon the complainant because of administrative wrongs. Damages are purely private law remedy Damages cannot be awarded simply on the basis that a government body has acted illegally. Damages may not be awarded to the complainant on the mere ground that some sort of compensable injury has suffered due to the act of an administrative body, which is found to be ultra vires in a judicial review. To obtain an award of damages it is necessary for the applicant to show a private law wrong in tort or contract

184. Liability of the Administration The grant of civil remedies is dependent upon the grant public law remedies. I. e. if the prerogative remedies are not given, damages or private law remedies may not be awarded as factors justifying judicial review may not sometimes completely overlap with those of constituting civil wrong. In Ethiopia , the state and civil servants units may be held strictly and vicariously liable for the injury caused to third parties because of: The dangerous activities it operated ( strict liability ) or Due to the official fault committed by its employees or servants during discharging their duties ( vicarious liability ) (Article 2126(2) cum Article 2157(2) of the civil code.

185. Contd … In fault based liability , the fault might be: Personal fault : the person who committed the fault is personally liable to compensate the victim Art. 2126(1) cc. Service(official fault ): does not immune the public servant or government employee from personal liability in Ethiopia Art. 2126(2 ) of cc. It merely gives the victim an option to sue the administration for compensation jointly and severally with the public servant or government employee As a matter of discretion, however the court may decide that the liability shall be ultimately borne by the administration wholly or partly having regard to the gravity of the fault committed Art. 2157(1) cum Art. 2158(1) of the cc.

186. WELL DONE! ! Thank you !!!!!