Administrative Law : Concept, Theories, Development

It will help you to know about administrative law in depth.

1. Adv. Vijay Jayshwal Kathmandu University School of Law A dministrative Law (LADM 336) 12/22/2019

2. Learning Objective of the course Basic introduction to administrative law, jurisprudence, case law Aware about the power, control, discretion, abuses and misuse, agencies of government, judicial review, administrative action etc. Administrative law literacy Recognize administrative law issues How to deal with agencies How agencies are and must be political Cost-benefit analysis Unintended consequences of regulatory decisions A hard look at a few regulatory problems Unlawful and irregular administrative actions 12/22/2019

3. Course Materials The prescribed text book ( M P Jain and S N Jain, Principles of Administrative Law (Lexis Nexis, 2015) Basic intro to administrative law – read it all Full text cases in specific regulatory areas ( Articles, book review, case law, journals publicist, judicial opinions, and others) Learn to deal with the underlying facts Regulatory materials/ Publicist from agencies What do regulatory documents look like, values, scope and regularities on such publication? How do you read long documents? Methods of using smarter documents Socratic dialogue, interaction and discussion of issues that come up in the regular/ daily news. Each chapter will follow by specific reading materials prescribed by concerned teacher. 12/22/2019

4. Methods of Learning Priority to text book…. PowerPoint slides These will be used at times in the course to present background material , literature review on subject concerned on specific legal issues of administrative law subjects Regular class presentation will be emphasis, peer group learning will be encouraged, group work will be prioritized and other as suggested by students. Modules Reading materials will be displayed at modules soon after class, specific assignment will be given in module. Further evaluation question will be also given, developmental ideas will be respected….. Note : few PPT will be used . 12/22/2019

5. Welcome to domain of ADMINISTRATIVE LAW…. 12/22/2019

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8. Why to Study Administrative Law Some is on the bar Procedural due process and standing The majority of lawyers do admistrative practice some or most of the time. Malpractice trap if you do not recognize adlaw problems. Fundamentally different approach than non-agency courses. Work for agencies. Counsel clients how to operate within regulations. Represent clients before agencies. Litigate against agencies. Represent clients in the development of agency policy and regulations. 12/22/2019

9. What is Administrative Law? It is indeed difficult to evolve a scientific, precise & satisfactory definition of Administrative Law. Many Jurists have made attempts to define it, but none of them has completely demarcated the nature, scope & content of administrative law. Administrative law and its concept are considered as changing phenomena. It is considered as branch of constitutional law which deals with administration. 12/22/2019

10. Administrative law is relating to the administration. It determines the organizations, powers & duties of the administrative authorities. It is the most widely accepted definition of the Administrative Law. (Sir Ivor Jennings) It does not distinguish administrative law from the constitutional law & It is vast definition. (Griffith & Street) However, it does not include the remedy(/ ies ) to an aggrieved person when his rights are adversely affected by the administration. (Griffith & Street) The relating the control of governmental power is called as administrative law. (Wade) According to Wade, the primary object of administrative law is to keep powers of the govt. within their legal bounds so as to protect the citizens against their abuse. (Wade) However, this definition also does not define the subject and also does not deals with the powers & duties of the administrative authorities. (Wade) 12/22/2019

11. Administrative law is the law concerning the powers and procedures of administrative agencies including especially the law governing judicial review of the administrative action. (K C Davis) Administrative law deals with the structure, powers & functions of the organs of the administration, the limits of their powers, the method & procedures followed by them in exercising their powers & functions, the method by which their powers are controlled including the legal remedies available to a person against them when his rights are infringed by their operations. (Jain & Jain) 12/22/2019

12. Administrative law is that branch of constitutional law which deals with powers duties of the administrative authorities, the procedure followed by them in exercising the powers and discharging the duties and the remedies available to an aggrieved person when his rights are affected by the action of such authority. ( Justice C K Thakker ) Whatever form a new administrative agency takes, the legislature must enact a statute creating the agency. This is called an agency’s organic act and mostly termed as’ enabling act’ is the fundamental source of an agency power. This principle- that the legislature creates agencies and sets limits on their authority- should be regarded as cardinal rule number one of administrative law. 12/22/2019

13. Administrative law is part of the branch of law commonly referred to as public law, i.e the law which regulates the relationship between the citizen and the state and which involves the exercise of state power. Public law is to be contrasted with private law, i.e the law which regulates the relationship between individuals, such as the law of contract and tort. Administrative law may be broadly defined as the law which regulates the exercise of power conferred under the law upon governmental bodies. In this context ‘ governmental’ refers to all public bodies invested with power under the law and so includes, for example, local authorities, the police and public corporations as well as central government. Indeed, a body may be defined as a public body and, as such, be subject to the principles of administrative law, even though it was not established by, and did not derive its powers from, government. 12/22/2019

14. Citizen’ here refers not only to the individual; government decisions may also affect individuals collectively in the form of, for example, trade unions or pressure groups. However, administrative law is not confined to regulating the relationship between the citizen and the state. It also serves to allow challenges by one arm of government to the legality of acts by another arm; in particular, challenges by local government to the legality of actions of central government or vice versa. As such, administrative law may be perceived as a weapon in the hands of the power holders themselves to ensure that each centre of power acts within the legal limits of its authority. 12/22/2019

15. The legal regulation of governmental power is to be distinguished from the political control of governmental power . The latter forms the basis of the study of constitutional law. 12/22/2019

16. What is common in law definition on Administrative law? 12/22/2019

17. Professor Arthur Bonfield “ administrative law is best appreciated through a comparative approach to the topic, that there is a great deal of creativity (what he calls “state solutions”) in state administrative systems that are never implemented by the stodgier, less innovative federal agencies, and, perhaps most importantly” State administrative processes operate under different circumstances than does the federal administrative process; consequently, some of the problems presented [in the states] differ either in degree or kind from those presented in the federal process. Many of the feasible or effective solutions to federal administrative law problems are not feasible or effective in the state context. Therefore, a study of problems and solutions in the federal administrative process cannot be an adequate vehicle to prepare students for dealing with all of the major problems presented in the state administrative process. 12/22/2019

18. Second, Read the agency’s enabling act and that jurisdiction’s administrative procedure act Scholar refer to this freedom of action as agency discretion. Agency discretion is a second fundamental to keep constantly in mind. It is realizing that the vast majority of agency decisions are never reviewed by either the courts or the legislature. A third fundamental that should never be forgotten is that courts have a relatively limited role in supervising agency conduct. Administrative Law is a combination of substantive and procedural law. Each federal administrative agency is empowered to administer a particular statute or statutes. These statutes are the substantive law that is enforced by the agency. 12/22/2019

19. Administrative Law is the rules, orders, and decisions of federal, state, and local government agencies established to perform a specific function. Enabling Legislation. The Types of Agencies. Agency Powers and the Constitution The administration of law, the law of administration, administration + law It is a public law. Admin law involves the study of how those part of our system of government that are neither legislature nor courts make decisions. These are called, administrative agencies normally located in the executive branch of government and usually charged with day –to- day details of governing. These agencies are created by specific Act of the legislatures and assign accordingly. 12/22/2019

20. Roman Law, still (6th c.) Publicum ius est, quod ad statum rei Romanae spectat , privatum , quod ad singulorum utilitatem . (“the government of the Roman empire” vs. “the welfare of individuals”). Publicum ius in sacris , in sacerdotibus , in magistratibus consistit . (“sacred rites, with priests, with public officers”) Martin Loughlin (2005) “a set of practices concerned with the establishment, maintenance and regulation of the activity of governing the state … the nature of [which] can be grasped only once that activity has been conceptualised as constituting an autonomous sphere; the political realm” 12/22/2019

21. Sources of Administrative Law Sources are the conduct of those agencies by which rule of conduct acquire the character of law by becoming objectively definite, uniform, above all compulsory. The sources of admin law is divided into two parts: Primary sources- Constitution, Act, Ordinance, Precedent, Delegated legislation, Executive Orders and administrative practices . (Mediate) Secondary sources- Opinion of experts, international treaties, Agreement, Declaration and Commitment, Reports of various Committee and Commission, legal maxims and principles ( Immediate, Keshav Raj Padeny,p.16 & 17) Admin. Law is not codified, written or well defined. It is essentially unwritten, unmodified and basically judge made. It stands on some fundamental rules, basic principles, minimum standard of law etc. It is based on the well known maxin “ Ubi jus ibi remedium (Where there is a wrong/right, there is a remedy)”. 12/22/2019

22. 12/22/2019 In case of UK, Rules Publication Act 1893, Statutory Instrument Act 1946, Tribunals and Inquiries Act 1958 (now 1991), Crown Proceedings Act 1947 and Parliamentary Commissioner Act 1967. In USA, Administrative Procedure Act 1946, Federal Tort Claims Act 1946, Tribunals Act 1984, Indian Evidence Act 1872, Commission of Inquiry act 1952 and others. In Nepal, Apex Court Act 2008, Magistrate Ain Sawal , 2010, Citizens Right Act 2012, Civil Service Act 2013 & Rules 2021, SC Act 2075, Administrative Function Regulation Act 2013 and others.

23. Nature & Scope of Administrative Law Administrative law deals with the powers of the administrative authorities; It deals with manner in which such power will exercise; Remedies for breach of such manner to an aggrieved; It unravel the way in which these admin authorities could be kept in boundary; Lawful exercise of discretionary powers 12/22/2019

24. Principles of Admin law 12/22/2019 A public authority may not act outside its powers (ultra- vires ) (principle of jurisdiction) To provide an effective remedy to the people against the public authorities (principles of remedial appendages) To check abuse or detrounment of administrative powers (principles of check and balance) To ensure the citizens an impartial determination of their disputes with officials (principles of fairness, due process) To protect the people from unauthorized encroachment on their rights and interests ( principle of exercise lawful authority) To make those who exercise public power accountable to the people ( principle of accountability) To protect a public authority from being harassed by busy bodies and crank ( principle of autonomy in work)

25. Reasons behind growth of Admin. law There is radical change in the philosophy as to the role played by the State; The judicial system is inadequate to decide & settle al types of disputes; The legislative process was inadequate; There is scope for experiment in administrative process; The administrative authorities can avoid technicalities; It can take preventive measures; The can take effective measure to enforce its decision. 12/22/2019

26. Functions of Admin. law Principal function of admin. Law is to confine the govt. within the law, Ensure citizens rights and remedies in case of violation, Ensure accountability of the govt. 12/22/2019

27. What does Administrative Law Deal With? The formation, staffing, and funding of agencies. Rulemaking (legislation) by agencies Adjudications (trials) by agencies Judicial review of agency action Access to private information by agencies Public access to agency information Agency liability 12/22/2019

28. Areas of Administrative Law Practice Tax Environmental law Securities law Land use law Health law Energy law Etc. 12/22/2019

29. Three Approaches ( Willis ) The Situation ( Discretionary administration or “rule of law”?) The Challenge ( The practical problem is how to fit into our constitutional structure these new institutions whose growth seems inevitable) The Solution Judicial Conceptual Functional 12/22/2019

30. Judicial (The Ugly) Judicial prejudices Cases over statutes (judges over legislators); strict construction; common law over statutory law ( formal ) Private rights over public welfare; common law over statutory law ( substantive ) Judges and legislature over executive ( personal ) “judges are also human” “growing hostility to administrative tribunals” manifests itself in various ways (less deference, stricter review, from “easy-going air of tolerance” to “suspicious distrust”) The truth is that … where the legal concepts to be applied are vague and indeterminate, and strong feelings are aroused, the replacement of one attitude by another produces a different result in a similar situation. Legal Realism 12/22/2019

31. Horwitz : 19th c.: “ One of the goals of nineteenth century legal thought was to create a clear separation between constitutional, criminal, and regulatory law—public law—and the law of private transactions—torts, contracts, property, and commercial law.” Why? separate law from redistributive politics; “state regulation of private relations was a dangerous and unnatural public intrusion into a system based on private rights” early 20th c.: progressivism and legal realism: “All law [is] a delegation of coercive public power to individuals, and could only be justified by public policies.” After 1945: “[R] evival of natural-rights individualism … is a symptom of the collapse of a belief in a distinctively public realm standing above private self-interest. It is not only a dangerous symptom of the unravelling of all sense of community, but also a relapse into a predatory and vicious conception of politics.” 12/22/2019

32. Conceptual (The Bad) Doctrinal distinctions/labels E.g., judicial vs. administrative function Constitutional beliefs Separation of powers Rule of law “internal limit” “Modern necessities”/ “public expediency” Use labels (e.g., “administrative” acts) to achieve desired result Indeterminate and outdated Separation of powers: so “ eighteenth-century” Rule of law: so “ nineteenth-century” 12/22/2019

33. Functional (The Good) Institutional competence “The problem is neither one of law nor of formal logic, but of expediency.” Fact: “work is assigned to the person best fitted to do it” Legal rights are normally decided by a court for the reason, and no other, that they are best fitted for the work of finding facts and absorbing new interests into the existing social structure. Norm: and that’s the way it should be “All three existing arms of government being found inadequate to achieve the social purpose aimed at, a new type of body, called a commission, a government in miniature, is set up.” Deference as recruitment tool: “attract[ ing ] men of first-class calibre ” Move beyond “pure law” to deal with the […] (messiness, complexity, dangers, interconnectedness, exigencies, etc.) of modern life 12/22/2019

34. Theories Legal idealists – about defining public values and designing institutions to implement them; value transparency and process Democratic liberalism – concerned with rule of law, so emphasizes accountability Normative pluralism – concerned with ensuring access to diverse groups of policy/interest groups Realist – question whether public-oriented goals of legal ideologists can be instituted and question behavioral motivation of agency heads Critical theory – admin about power dynamics of socio-economic class (lesser focus on dynamics of race and gender) Public choice/positive political theory – legislation embodies the interest of groups with proper incentives to mobilize and wield influence Politics is a market for legislation Based on assumption that all actors behave rationally to maximize wealth, status and power Lobbying when there are narrowly dispersed benefits or costs 12/22/2019

35. 12/22/2019 Green light theory The green light approach considers that the function of administrative law is to facilitate the operation of the state. It is based on the rationale that bureaucrats will function most efficiently in the absence of intervention. Administrative law should aim to help simplifying the procedures and enhance efficiency. It sees that admin law is a vehicle for political progress and welcomes the ‘administrative state’. To minimize the influence of courts, with their legalistic values, It prefers democratic or political forms of accountability.

36. 4’s propositions of GLT 12/22/2019 (1) That law is nothing more than a sophisticated (or elitist) discourse of politics and is neither autonomous from politics nor superior to administration; (2) That public administration is not a necessary evil to be tolerated, but a positive attribute to be welcomed; (3) That the objective of administrative law and regulation is not merely to stop bad administrative practices, but is to encourage and facilitate good admin practices (to control administration by channelling and guiding and courts not necessarily best vehicle to realise these objectives); 4) The goal of this project should be to enhance individual and collective liberty where liberty is conceived of as something which is, if not constituted by the state, then is at least facilitated by it, and is certainly not necessarily threatened by it (e.g. goal of the state might be to house the homeless and feed hungry and educate young, etc. and role of admin. law is to help state perform these tasks well).

37. Red Light theory (RLT) 12/22/2019 The red light approach advocates strong role for the courts to review administrative decisions. It considers that the function of law is to control the excesses of state power.  “The red light view can be seen to originate from a political tradition of 19th century laissez faire (minimal state) theory. It embodied a deep-rooted suspicion of  governmental power and a desire to minimize the encroachment of the state on the rights (especially property rights) of individuals. According to this theory of state, the best government is the one that governs least. Wider power means danger to the rights and liberty of citizens. Hence, the red- light theory serves the function of controlling excess and arbitrary power, mainly by the courts. 

38. 4’s propositions of Red Light Theory 12/22/2019 (1)That law is autonomous to and superior over politics; (2) That the administrative state is something which needs to be kept in check by the law; (3) That the preferred way of doing this is through rule-based adjudication in courts; (4) That the goal of this project should be to enhance individual liberty where liberty is conceived as being the right to be left alone, the absence of external constraints (an idea of liberty best realised by having small government).

39. Amber Light Theory 12/22/2019 It believes that admin law must act both as fire-watching and fire-fighting. 4’s propositions … (1) (With red-light theorists) that law is both discrete from and superior to politics; (2) That the state can successfully be limited by law, although that law ought properly to allow for the administration to enjoy a degree – albeit controlled degree – of discretionary authority; (3) That the best way of controlling the state is through the judicial articulation and enforcement of broad principles of legality; (4) That the goal of this project is to safeguard a particular vision of human rights.

40. History of Administrative Law 12/22/2019

41. Admin as subject… Admin law is a subject of fairly recent origin with the potentiality of multi-dimensional growth. There may be some force in the early 1960s when Lord Reid stated in Ridge V. Baldwin (1964, A.C.40) that “ we do not have a developed system of administrative law-perhaps until fairly recently we did not need it”. But in the last quarter of the 2oth century very few public law experts would venture to contest the propositions that administration of justice would be incomplete without the proper appreciation of administrative law. Considering the growth of admin law, its field can be broadly divided into four parts: 1. Introductory of admin law. 2.Legislative functions of administrative bodies 3. Judicial functions of administrative bodies 4. Purely administrative functions of administrative bodies especially involving exercise of discretionary power. 12/22/2019

42. The Administration of Government Moving beyond feudalism, all governments are divided into functional units that behave as agencies Administrative law deals with agencies in the executive branch of the federal government State administrative law is more complex because states have multiple executives and less separation of powers. 12/22/2019

43. The Colonial Period Colonial governments had agencies that were either controlled by the king or by local governments Boards of health Major cities were more powerful entities than most states To this day, old cities have varying degrees of special legal status Much of the regulatory state was urban 12/22/2019

44. Articles of Confederation After independence, but before the Constitution, the states were independent sovereigns All agency action was under state and local The Articles did not provide for a central government with binding powers This did not work very well and almost cost for the revolutionary war 12/22/2019

45. The Constitutional Allocation of Powers The Constitution provided for a national executive, legislature, and courts with binding powers over the states The states were left all powers not allocated to the federal government Police powers (most traditional state and local regulation) The delegation was flexible, not enumerated 12/22/2019

46. Administrative Law in the Constitution The Constitution did not contemplate a large federal government The Constitution established the framework for separation of powers and basic functions of the government, but is largely silent on the law of agencies This was not important at the time because day to day government was run by states and cities 12/22/2019

47. World War II The role of the federal government was greatly expanded to fight World War II Took over private business for the war effort. Intruded in private life (rationing, etc.) for the war effort. The military did not disband after WW II because we went into the Cold War The federal government also did not disband, beginning the modern regulatory state 12/22/2019

48. Post World War II Modern administrative law starts with the Administrative Procedure Act in 1946. Modern Supreme Court admistrative law jurisprudence starts in the 1960s as the regulations increase and Court starts to work out the proper role of agencies. 12/22/2019

49. Reference materials Chapter 1, Lectures on Administrative Law: C K Thakker . CASE OF O.O. v. RUSSIA (Application no. 36321/16)  , ECLI:CE:ECHR:2019:0521JUD003632116 , Council of Europe: European Court of Human Rights, OPINION OF ADVOCATE GENERAL BOBEK in Case C‑556/17 Alekszij Torubarov v Bevándorlási és Menekültügyi Hivatal (Request for a preliminary ruling from the Pécsi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Pécs , Hungary))  , ECLI:EU:C:2019:339 , European Union: Court of Justice of the European Union,  AFFAIRE A.M. c. FRANCE ( Requête no 12148/18)  , Council of Europe: European Court of Human Rights Arrêt n° 219 682  ,  Belgium : Conseil du Contentieux des Etrangers BF (Tirana – gay men) Albania [2019] UKUT 0093 (IAC)  , United Kingdom: Upper Tribunal (Immigration and Asylum Chamber), SM v Entry Clearance Officer, UK Visa Section (C-129/18) (request for preliminary ruling)  , European Union: Court of Justice of the European Union E. v Staatssecretaris van Veiligheid en Justitie (C‑635/17) (request for preliminary ruling)  , ECLI:EU:C:2019:192 , European Union: Court of Justice of the European Union 12/22/2019

50. Vermont Yankee Nuclear Power Corp. v. NRDC (435 U.S. 519 (1978). Citizens to Preserve Overton Park v. Volpe (401 U.S. 402 (1971) Universal Camera Corp. v. NLRB (340 U.S. 474 (1951). Chevron, USA., Inc. v. NRDC ( 467 U.S. 837(1984). Reserve Mining Co. v. EPA514 F.2d 492 (8th Cir. 1975) Asbestos Information Association of North America v. OSHA (727 F.2d 415 (5th Cir. 1984). 12/22/2019

51. Nepalese case law Krishna Prasad Lamsal vs. Nepal Government (writ no-2737-2048) Thirtha Koirala vs. Nepal Government (writ no.2921-2050) 12/22/2019

52. Indian case law (Year of 2018) Constitutionality of Aadhaar Act ( K.S. Puttaswamy v. Union of lndia , WP (C) 494/2012) Sabarimala Temple Entry ( Indian Young Lawyers Association v. State of Kerala, WRIT PETITION (CIVIL) NO. 373 OF 2006) Constitutionality of Section 377 ( Navtej Johar v. Union of India, WRIT PETITION (CRIMINAL) NO. 76 OF 2016) Arrested Activists ( Romila Thapar v. Union of India, WRIT PETITION (CRIMINAL) NO. 260 OF 2018) Decriminalization of Adultery ( Joseph Shine v. Union of India, WRIT PETITION (CRIMINAL) NO. 194 OF 2017) Reservation in Promotion ( Jarnail Singh v. Lacchmi Narain Gupta, SPECIAL LEAVE PETITION (CIVIL) NO.30621 OF 2011 ) Electoral Disqualification ( Public Interest Foundation v. Union of India, WRIT PETITION (CIVIL) NO. 536 OF 2011) Hadiya Marriage ( Shafin Jahan v. KM Ashokan , (Arising out of S.L.P.( Crl .) No.5777 of 2017) Cow Vigilantism ( Tehseen Poonawalla v. Union of India, WRIT PETITION (CIVIL) NO. 754 OF 2016) Special Status of Delhi ( Government of NCT of Delhi v. Union of India, CIVIL APPEAL NOS. 2357 OF 2017) 12/22/2019

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