SCOPE OF ADMINISTRATIVE LAW

Distinction between Public Law and Private Law

The boundaries of administrative law extend only when administrative agencies and public

official exercise statutory or public powers, or when performing public duties. In both civil and

common law countries, these types of functions are sometimes called “public law

function” to distinguish them from “private law functions”. The former govern the

relationship between the state and the individual, whereas the later governs the relationship

between individual citizens and some forms of relationships with state, like based on government

contract. For example, if a citizen works in a state owned factory and is dismissed, he or she

would sue as a “private law function”. However, if he is a civil servant, he or she would sue as a

“public law function”. The point here is that the rules and principles of administrative law are

applicable in a relationship between citizens and the state: they do not extend to cases where the

nature of the relationship is characterized by a private law function.

THE RELATIONSHIP OF ADMINISTRATIVE LAW TO CONSTITUTIONAL LAW AND

OTHER CONCEPTS

For a long time, the similarity between constitutional law and administrative law had led to

confusion between both because the latter was, until very recently, treated as an appendage of

or annexure to the former. One of the reasons therefore is that the two were fused for a long time

because English scholars such as Austin and Maitland hesitated to see administrative law as a

body of law distinct from constitutional law.

Administrative law is categorized as public law since it governs the relationship between the

government and the individual. The same can be said of constitutional law. Hence it is

undeniable that these two areas of law, subject to their differences, also share some common

features. With the exception of the English experience, it has never been difficult to make a clear

distinction between administrative law and constitutional law. However, so many administrative

lawyers agree that administrative law cannot be fully comprehended without a basic knowledge

of constitutional law. As Justice Gummov has made it clear “The subject of administrative law

cannot be understood or taught without attention to its constitutional foundation”. This is true

because of the close relationship between the two laws. To the early English writers there was no

difference between administrative law and constitutional law. Therefore, Keitch observed that it

is “logically impossible to distinguish administrative law from constitutional law and all attempt

to do so are artificial”.

However, in countries that have written constitution, their difference is not so blurred as it is in

England. One typical difference is related to their scope. While Constitutional law, deals in

general with the power and structures of government. i.e. the legislative, the executive and

the judiciary, administrative law in its scope of study is The legislative and the judicial branches

are relevant for the study of administrative law only when they exercise their controlling function

on administrative power.

Constitutional law, being the supreme law of the land, formulates fundamental rights

which are inviolable and inalienable. Hence, it supersedes all other laws including

administrative law. Administrative law does not provide rights. Its purpose is providing
principles, rules and procedures and remedies to protect and safeguard fundamental

rights. This point, although relevant to their differences, can also be taken as a common ground

shared by constitutional and administrative law. To put it in simple terms, administrative

law is a tool for implementing the constitution. Constitutional law lays down principles

like separation of power and the rule of law. An effective system of administrative law

actually implements and gives life to these principles. By providing rules as to the manner

of exercising power by the executive, and simultaneously effective controlling mechanisms

and remedies, administrative law becomes a pragmatic tool in ensuring the protection of

fundamental rights. In the absence of an effective system of administrative law, it is

inconceivable to have a constitution which actually exists in practical terms. Administrative law

is also instrumental in enhancing the development of constitutional values such as rule of law

and democracy. The rules, procedures and principles of administrative law, by making public

officials, comply with the limit of the power as provided in law, and checking the validity and

legality of their actions, subjects the administration to the rule of law. This in turn sustains

democracy. Only, in a government firmly rooted in the principle of rule of law, can true

democracy be planted and flourished. A basic issue commonly for administrative law and

constitutional law is the scope of judicial review. The debate over scope is still continuing and is

showing a dynamic fluctuation, greatly influenced by the ever changing and ever expanding

features of the form and structure of government and public administration. The ultimate

mission of the role of the courts as ‘custodians of liberty ‘, unless counter balanced against the

need for power and discretion of the executive, may ultimately result in unwarranted

encroachment, which may have the effect of paralyzing the administration and endangering the

basic constitutional principle of separation of powers. This is to mean that the administrative law
debate over the scope of judicial review is simultaneously a constitutional debate. Lastly,

administrative and constitutional law, share a common ground, and supplement each other

in their mission to bring about administrative justice. Concern for the rights of the individual

has been identified as a fundamental concern of administrative law. It ultimately tries to attain

administrative justice. Sometimes, the constitution may clearly provide right to administrative

justice. Recognition of the principles of administrative justice is given in few bills of rights or

constitutional documents.

ADMINISTRATIVE LAW AND HUMAN RIGHTS

Every branch of law has incidental effects on the protection or infringement of human rights,

whether by constraining or enabling actions which affect other people. Administrative law is,

however, particularly vulnerable to the permeation of human rights claims, since, like human

rights law, it primarily constrains the exercise of public power, often in controversial areas of

public policy, with a shared focus on the fairness of procedure and an emphasis on the

effectiveness of remedies. At an abstract level, there is a consonance of fundamental values

underlying human rights law and administrative law. Both systems of law aim at restraining

arbitrary or unreasonable governmental action and, in so doing; help to protect the rights

of individuals. Both share a concern for fair and transparent process, the availability of

review of certain decisions, and the provision of effective remedies for breaches of the law.

The correction of unlawful decision- making through judicial review may help to protect rights.

The values underlying public law – autonomy, dignity, respect, status and security closely

approximate those underlying human rights law. Moreover, each area of law has been primarily

directed towards controlling public ‘power, rather than interfering in the private ‘realm, despite

the inherent difficulties of drawing the ever-shifting boundary between the two. A culture of
justification permeates both branches of law with an increasing emphasis on reasons for

decisions in administrative law and an expectation in human rights law that any infringement or

limitation of a right will be justified as strictly necessary and proportionate. There is also an

ultimate common commitment to the basic principles of legality, equality, the rule of law and

accountability. Both administrative and human rights laws assert that governments must

not intrude on people‘s lives without lawful authority. Further, both embody concepts of

judicial deference (or restraint) to the expertise of the executive in certain matters. In

administrative law, for example, this is manifested in a judicial reluctance to review the merits,

facts or policy of a matter. There are also marked differences between the two areas of law.

Human rights law is principally concerned with protecting and ensuring substantive rights

and freedoms, whereas administrative law focuses more on procedure and judicial review

attempts made to preserve a strict distinction between the legality and the merits of a

decision. Human rights law protects rights as a substantive end in themselves, whereas

administrative law focuses on process as the end and it may be blind to substantive

outcomes, which are determined in the untouchable political realm of legislation or government

policy. It is perfectly possible for a good administration to result in serious human rights

violations (and conversely, compatibility with human rights law does not preclude gross mal

administration). Human rights law is underpinned by the paramount ideal of securing

human dignity, whereas administrative law is more committed to good decision-making

and rational administration. The three broad principles said to have underpin administrative

law are largely neutral on substantive outcomes: administrative justice, executive

accountability and good administration. The traditional emphasis of administrative law on

remedies over rights reverses the direction of human rights law, which may provide damages for
the breach of a right, whereas this is not the natural consequence of invalid action in

administrative law. At the same time, administrative law remedies may still guarantee essential

human rights; an action for release from unlawful detention (habeas corpus) can secure freedom

from arbitrary detention, and an associated declaration by the courts may provide basis for

pursuing compensatory damages in a tortuous claim for false imprisonment.

ADMINISTRATIVE LAW AND GOOD GOVERNANCE

Administrative law plays an important role in improving efficiency of the administration. The

rules, procedures and principles of manner of exercising power prescribed by administrative law

are simultaneously principles underlying good governance. They also share a common goal. One

of the common destinations of administrative law and good governance is the attainment of

administrative justice. The set of values of administrative justice which mainly comprises

openness, fairness, participation, accountability, consistency, rationality, legality,

impartiality and accessibility of judicial and administrative individual grievance

procedures are commonly shared by administrative law and good governance.

Administrative law also helps to realize the three underlying principles of

good administration: i.e. accountability, transparency and public participation.

Accountability is fundamental to good governance in modern and open societies. A high level of

accountability of public officials is one of the essential guarantees and underpinnings, not just of

the kinds of civic freedoms enjoyed by the individual, but of efficient, impartial and ethical

public administration. The administrative law system, when working properly, supplements and

enhances the traditional processes of ministerial and parliamentary accountability in any

system of government. Administrative law also ensures transparency in the conduct of

government administration and the decision making process. One of the requirements of an open
government is the right of individuals to obtain and have access to information. Government has

to implement the right to get information through specific legislation. Freedom of information

act, adopted in most democratic countries, affords citizens the right to have access to public

documents and the right to be timely informed of decisions affecting their interests. In addition to

this role of administrative law enabling citizens have access to government information, it also

ensures openness in the decision-making process. Administrative law lays down the legal

framework by which public’s participation is recognized and practically implemented. The

principle of public participation as an element of good administration allows citizens to have

their say or their voice be heard in the conduct of government administration. In a developed

system of administrative law, agencies are required to observe minimum procedures while

making judicial decisions or issuing rules and procedures. The principle of natural justice which

mainly requires an individual’s defense be heard and get an impartial and fair treatment in the

adjudication process acts as a stimulant for public participation indirectly creating public

confidence.

ADMINISTRATIVE LAW AND RULE OF LAW

The Expression “Rule of Law” plays an important role in the administrative law. It provides

protection to the people against the arbitrary action of the administrative authorities. In simple

terms, the rule of law requires that government should operate within the confines of the

law; and that aggrieved citizens whose interest have been adversely affected be entitled to

approach an independent court to adjudicate whether or not a particular action taken by

or on behalf of the state is in accordance with the law. In these instances, the courts examine a

particular decision made by an official, or an official body to determine whether it falls within

the authority conferred by law on the decision maker. In other words, the courts rule as to
whether or not the decision is legally valid. It is in this way that the principle of rule of law

serves as the foundation of the administrative law. It has been repeatedly said that the basic

purpose of the administrative law is to control excessive and arbitrary governmental power. This

purpose is mainly achieved through the ordinary courts by reviewing and checking the

legality of any administrative action. Therefore, administrative law as a branch of law, is

rooted in the principle of the rule of law. This principle mainly stipulates that every

administrative action should be according to law. The different control mechanisms of power

in administrative law by preventing government not to go beyond the authority granted to it by

law ensure that rule of law is respected. Hence, the expression Rule of Law plays an important

role in administrative law. It provides protection to the people against arbitrary action of the

administrative law. To clearly understand the relationship between the rule of law and the

administrative law, it is important to examine a related doctrine of the administrative law, which

is the doctrine of ultra vires. The doctrine to some extent is a derivation of the principle of the

rule of law. The former underlines that power should be exercised according to law. The

later, goes one step further and states that an action of any official or agency beyond the

scope of power given to it is ultra vires (i.e. beyond power), hence it is considered as null

and void. An ultra vires act does not have any binding effect in the eyes of the law. The simple

proposition that a public authority may not act outside its powers (ultra vires) might fitly be

called the central principles of the administrative law. The juristic basic of judicial review is the

doctrine of ultra vires. According to Wade & Forsyth an administrative act that is ultra vires or

outside of jurisdiction (in case of action by administrative court) is void in law, i.e. deprived of

any legal effect. This is, in order to be valid, it needs statutory authorization, and if it is not

within the powers given by the act, it has no legal leg to stand on it. Once the court has declared
that some administrative act is legally a nullity, the situation is as if nothing has happened.

Administrative law by invalidating an ultra vires act ensures that every administrative action is in

conformity with the law; indirectly guaranteeing the observance of rule of law.