CHAPTER ONE:

INTRODUCTION TO ADMINISTRATIVE LAW

This chapter presents you some highlights of the nature, meaning, scope and sources of
administrative law. Administrative law, as a branch of public law, governs the relationship of
the state and its citizens. Specifically, it regulates the manner of exercising power by the
executive branch of government and administrative agencies so as to ensure its legal limits.
Ultimately, by controlling power, it provides protection to the citizen against ultra vires acts,
abuse of power and arbitrariness.

This chapter begins by giving students background information about the political and economic
forces shaping the evolution and development of administrative law. How and why
administrative law was recognized and later developed as a distinct branch of law is discussed
under this unit.

Then, the chapter discusses the theories of administrative law. Different definitions of
administrative law given by different scholars are compared and contrasted to show the various
approaches towards the subject. Sources of administrative law may be mentioned as:
constitution, enabling act, delegated legislation, and judicial administrative decisions. The
study of these instruments is relevant to understanding its practical application. It is believed that
these points will ultimately enable students to understand and determine the proper scope of
administrative law.
Definition, Purpose, Scope and Sources of Administrative Law

Definitions
• Austin has defined administrative law, as the law which determines the ends and
modes to which the sovereign power shall be exercised.
• Schwartz has defined administrative law as the law applicable to those administrative
agencies, which possess delegated legislation and adjudicative authority. This definition
is a narrower one. Among other things, it is silent as to the control mechanisms and those
remedies available to parties affected by an administrative action.
• Jennings has defined Administrative law as the law relating to the administration. It
determines the organization, powers and duties of administrative authorities.
 Massey criticizes this definition because it fails to differentiate administrative and
constitutional law.
• Davis who represents the American approach defines administrative law as; the law that
concerns the powers and procedures of administrative agencies, specially the law
governing judicial review of administrative action.

• 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.

Purpose of Administrative Law

There has never been any serious doubt that administrative law is primarily concerned with the
control of power. With the increase in level of state involvement in many aspects of everyday life
during the first 80 years of the twentieth century, the need for a coherent and effective body of
rules to govern relations between individuals and the state became essential
• It has a control function, acting in a negative sense as a brake or check in respect of the
unlawful exercise or abuse of governmental administrative power.
• It can have a command function by making public bodies perform their statutory duties,
including the exercise of discretion under a statute.
• It embodies (stand for) positive principles to facilitate good administrative practice; for
example, in ensuring that the rules of natural justice or fairness are adhered (obeyed) to.

• It operates to provide accountability and transparency, including participation by interested

individuals and parties in the process of government.

• It may provide a remedy for grievances at the hands of public authorities

To realize these basic purposes, A comprehensive (complete), advanced and effective system of
administrative law is underpinned (strengthen) by the following three broad principles:
• Administrative justice, which at its core, is a philosophy that in administrative decision-
making the rights and interests of individuals should be properly safe guarded.
 • Executive accountability, which has the aim of ensuring that those who exercise the
executive (and coercive) powers of the state can be called on to explain and justify the way
in which they have gone about that task.
• Good administration- Administrative decisions and actions should conform to universally
accepted standards, such as rationality, fairness, consistency uniformity and transparency.

Sources of Administration Law

Administrative law principles and rules are to be found in many sources. The followings are the
main sources of administrative law;
• The Constitution
• Legislation

Laws adopted by parliament, which may have the effect of creating an administrative agency, or
specify specific procedure to be complied by the specific authority in exercising its powers, can
be considered a primary source for the study of administrative law.

The statute creating an agency known as enabling act or parent act, clearly determines the limit
of power conferred(discussed) on a certain agency.

Delegated Legislation
Rules, directives and regulations issued by Council of Ministers and each administrative
agencies are also the main focus of administrative law. Administrative law scholarship is
concerned with delegated legislation to determine its constitutionality and legality or validity and
ensure that it hasn‘t encroached

Judicial Opinion
Much, but not most, of the doctrine that envelops and controls administrative power is found in
judicial analysis of other sources. However, much of administrative law will not be found solely
in judicial opinions. Furthermore, the opinions themselves must be carefully pursued to avoid
generalizations about controls on agency behavior that may not be appropriate, as the outcome of
many cases may turn on particular statutory language that may not necessarily reflect the nature
of disputes in other agencies.
Public Law/Private Law Divide
• The boundaries of administrative law extend only when administrative agencies and public
officials 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 functions 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 the
state, like relationship 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.

• Similarly, if residents of the surrounding community were concerned about a decision to

enlarge the state- owned factory because of environmental pollution, the legality of the
decision could be reviewed by the courts as a public law function.

• It is also to be noted that a contract between an individual or business organization with a

certain administrative agency is a private law function governed by rules of contract
applicable to any individual – individual relationship. However, if it is an administrative
contract it is subject to different rules

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.

Theoretical Perspectives

Red Light Theory

• 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 theory.
• It embodied to minimize the encroachment of the state on the rights of individuals.
(especially property rights).
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.

On the one hand, it gives much attention on control of governmental power, and on the other
hand, it is confident that the effective controlling instrument are the courts through judicial
review; As Harlow and Rawlings put it:

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 officials will function most
efficiently in the absence of intervention.
• Administrative law should aim to help simplifying the procedures and enhance efficiency.
It starts from the standpoint of a more positive, largely social and democratic view of the
state.
• The green light theory is originated from the utilitarian tradition, which proposes
promoting the greatest good for the greatest number. According to the utilitarian theory, the
state is expected to provide the minimum standards of provision, including housing,
education, health, social security, and local services. To provide maximum satisfaction for
most of its people, the state should assume a broader role, hence, should possess wider
powers.
• The green light theory broadly supports the introduction of policies aiming at developing
public service provisions. Law is perceived as a useful weapon and an enabling tool. It is
something very concrete and can provide in principle, at least, the proper authority and
framework with which to govern consensually. It regards law not as a controlling
mechanism, rather as facilitative tool. Consequently, it considers the court‘s intervention as
an obstacle to efficiency.
Substance vs. Procedure
• Many of the definition and approaches to administrative law are limited to procedural aspects
of the subject. The focus of administrative law is mainly on the manner and procedure of
exercising power granted to administrative agencies by the legislature. For describes the
trend and interaction between substance and procedure as.

Constitutional law and administrative law

Administrative Law Constitutional Law
Administrative law in its scope of study is constitutional law deals, in general, with the
limited to the exercise of power by the power and structures of government, i.e. the
executive branch of government. The legislative, the executive and the judiciary
legislative and the judicial branches are
relevant for the study of administrative law
only when they exercise their controlling
function on administrative power

Administrative law does not provide rights. Constitutional law, being the supreme law of
Its purpose is providing principles, rules and the land, formulates fundamental rights which
procedures and remedies to protect and are inviolable and inalienable. Hence, it
safeguard fundamental rights. supersedes all other laws including
administrative law.

Administrative law is a tool for implementing Constitutional law lays down principles like
the constitution. separation of power and the rule of law.

Administrative law is also instrumental in

enhancing the development of constitutional
values such as rule of law and democracy.

Similarities between Constitutional Law and Administrative Law

A basic issue commonly for administrative law and constitutional law is the scope of

• Judicial review.
• Public law
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 (foundation) 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.
• The attainment of administrative justice largely depends on the existence of efficient and
effective institutions like the ombudsman, administrative tribunals and ordinary courts
• 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 (foundations) of good administration.
• Indeed, public acceptance of a government and the roles of officials depend upon trust and
confidence founded upon the administration being held accountable for its actions.
• The administrative law system, when working properly, supplements and enhances the
traditional processes of ministerial and parliamentary accountability in any system of
government.
• Ministers are accountable to Parliament for reviewable decisions. They can be called upon
to provide an explanation for, and account of their decisions.
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.

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.

Administrative Law and Democracy

• True democracy states that the executive government would be accountable to the people.
The various aspect of accountability and the role of administrative law in ensuring
accountability in government administration have been discussed above.

• The term accountability is uniformly applicable to all branches of government:

parliamentary, judicial and executive accountability.

• Even though administrative law is concerned with executive accountability, for a true
democracy to flourish, accountability should be manifested in all branches of government.
For instance, the executive branch is accountable to parliament.

Another meeting point of administrative law and democracy is the principle of rule of law.
Administrative law is rooted in the principle of rule of law. Rule of law, in turn nourishes
democracy.

• Every truly democratic system of government rests upon the rule of law, and no system is
truly democratic if it does not. There are at least two principles that are most important for a
constitutional government. The first is that the government should be subject to the rule of
law. The government should mostly and particularly comply with the basic laws
establishing its constitutional structure. The second is that the government should be
democratic. These two principles can join.

The conflict between democracy and administrative law is also reflected in the challenge
to justify the democratic basis of administrative agencies and administrative decision-
making.

• Administrative agencies make individual decisions affecting citizens ‘lives and also set
general policies affecting an entire economy, though are usually headed by officials who are
neither elected nor otherwise directly accountable to the public.
Administrative Law in Civil Law and Common Law Countries

There is a clear difference with regards to the scope of and the approach to administrative law in
these two legal systems

Administrative Law in Civil Law countries

• Administrative law in civil law countries covers issues such as the organization, powers and
duties of administrative authorities, the legal requirements governing their operation, and
the remedies available to those adversely affected by administrative action.
• It also includes subjects like the structure and composition of the various administrative
agencies, civil service law, the acquisition and management of property by the
administrative authorities, public works, and contractual and non- contractual liability of
administrative authorities and public officials.

Administrative Law in Common Law Countries

• Generally speaking, most countries that follow the principles of common law have
developed procedures for judicial review that limit the reviewability of decisions made by
administrative law bodies. Often, these procedures are coupled (joined) with legislation or
other common law doctrines that establish standards for proper rulemaking.
• Administrative law may also apply to review of decisions of the so-called semi-public
bodies such as nonprofit corporations, disciplinary boards, and other decision-making
bodies that affect the legal rights of the members of a particular group or entity.
• While administrative decision-making bodies are often controlled by larger governmental
units, their decisions could be reviewed by a court of general jurisdiction under some
principle of judicial review based upon due process (fair treatment through the normal
judicial system) or fundamental justice.

• It must be noted that judicial review of administrative decision, is different from an appeal.
When sitting in review of a decision, the court only looks at the method in which the
 decision has been arrived at, whereas in appeal, the correctness of the decision itself is under
question.

Droit Administrative

• French administrative law is known as ―droit administrative, which means a body of rules
which determine the organization, powers and duties of public administration and regulate
the relation of the administration with the citizens of the country.
• Administrative law in France does not represent the rules and principles enacted by the
parliament. It contains the rules developed by administrative courts. Administrative law in
France is a judge- made law.
• This seems strange for a country, representative of the civil law legal system, characterized
by the statute law as the primary source of law.
• France also has dual court structure: administrative courts and the ordinary courts existing
and functioning in an independent line.
• The highest administrative court is known as Conseil d'état, which is composed of
eminent (important) civil servants, and deals with a variety of matters like claim of damages
for wrongful acts of government servants, income tax, pension, disputed elections, personal
claims of civil servants against the state for wrongful dismissal or suspension and so on.
• Napoleon Bonaparte was the founder of the droit Administratiff who established the
Conseil d'état.
• Droit Administratif does not represent principles and rules laid down by the French
parliament; it consists of rules developed by the judges of the administrative courts.

Droit administrative therefore, includes three series of rules:

1. Rules dealing with administrative authorities and officials; for example, appointment,
dismissal, salary and duties, etc.

2. Rules dealing with the operation of public services to meet the needs of the citizens; for
example, public utility like electricity, water etc.
3. Rules dealing with administrative adjudication; for example, private and public liability of
public officials.

The Following Are the Main Characteristics of the Conseil D ‘état,

• Those matters concerning the state and administrative litigation fall within the jurisdiction
of administrative courts and cannot be decided by the ordinary courts of the land.
• In deciding matters concerning the state, and administrative litigation, special rules
developed by the administrative courts are applied
• Conflict of jurisdiction between ordinary courts and administrative courts are decided by
the agency known as Tribunal des conflicts.
• It protects government officials from control of the ordinary courts.
• Conseil d'état, is the highest administrative court.

Brown and Garner have attributed to a combination of following factors as responsible for the
success of conseil d'état.
• The composition and functions of the consei d'état
• The flexibility of its case- law,
• The simplicity of the remedies available before the administrative courts
• The special procedure evolved by those courts, and
• The character of the substantive law, which they apply
The scope of the administrative law is always becoming wider due to the dynamic changing
nature of the administrative process. In most countries, the rules, principles and procedures of the
administrative law are applicable not only in case of exercising public power by agencies, but
also in the decision making process of the public enterprises having monopoly power,
universities and private companies exercising governmental functions through contracts.
 CHAPTER TWO:
ADMINISTRATIVE AGENCIES: SUBJECTS OF ADMINISTRATIVE LAW
Introduction

Administrative law involves a challenge to the exercise of power by the executive government.
For this reason, it is necessary to look at the composition and powers of executive government,
and at how they exercise their powers when they take action or make decisions.

In practical terms executive government interferes in our lines and their actions affect our lives in
many ways. When we venture on a certain business, we have to acquire a relevant permit and
license before commencing our business.

Administrative agencies make individual decisions affecting citizens ‘lives and they set general
policies affecting an entire economy through they are usually headed by officials who are neither
elected nor directly accountable to the public.

Nature, Meaning, and Classification of Administrative Agencies

Nature of agencies

There is hardly any function of modern government that does not involve, in some way, an
administrative agency. The 20th century has witnessed an unprecedented proliferation 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.) For this reason, they have been responsible for the expansion and
development of administrative law greatly influencing its content, scope and future.

In the broadest sense, administrative law does not involve the study of how those parts of our
system that is neither legislature nor courts make decisions. It is concerned with the study of the
procedures, powers and control mechanisms of the administrative agencies. Administrative
agencies have become a major part of every system of government in the world.

The Meaning of Administrative Agency

Defining an administrative agency is not an easy task. Agencies come in a huge array of sizes
and shape. This is coupled with their wide ranging and complex functions and their power to
legislate and adjudicate, in addition, to their normal executive powers, makes it challenging and
difficult to precisely provide a precise and concise definition covering all these aspects of the
administrative process.

Agencies may be defined as governmental entities, although they affect the rights and duties of
persons are neither courts nor legislatures. For one thing it is true that agencies are not located
within the legislative or judicial organ of the government.

Although they are within the executive branch, most of them are not mainly accountable to the
executive branch. The term executive branch of government is used either to refer to the
president (e.g. in U.S.), or the prime minister and the council of ministers (e.g. Ethiopia). This
definition lacks some precision.

The following parameters should be used to determine whether a certain government entity
is an agency or not;

1. The nomenclature used to describe the entity is ministry, authority, agency, bureau, office,
commission, board, etc., or any other similar terms.

2. That it has legislative and/or adjudicative power granted by the legislature.

3. That the head of the agency is appointed by the executive or by the house of people‘s
representatives.

Classification of Administrative Agencies

Agencies are created with;

Varying size, structure, functions and powers. Some of them may be established with broader
powers; in charge of regulating a certain sector of the economy. This is typically the case with
ministries, which are headed by a high-level government minister.

Ministries not only enforce a government program or policy, but they also supervise and
overview 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.

Can you mention at least two executive agencies having the name of a ministry, authority,
agency and commission?

It has been said that independent agencies, are accountable to parliament, i.e. to the house of
people‘s representatives. The establishment of these agencies, even though they need the act of
the house of people‘s representatives for their material and legal existence, there is
predetermined by the constitution.

The constitution clearly imposes a duty to establish independent agencies indicated in the
constitution.

There are agencies falling under this category are listed below.
• Ombudsman
• The Human Right Commission
• The National Election Board
• The Auditor General
• The Population and Census Commission

With respect to these agencies’ parliament has the right to appoint heads. And remove them if
there are valid reasons

Formation of Administrative Agencies

Mode of Creating an Agency

agencies are creatures of the legislature. They do not spring up on their own, and courts or the
council of ministers cannot create them. The constitutions expressly require the establishment of
some independent agencies. They do not have i.e. material and legal existence unless the house
of people‘s representatives enacts a specific law for their establishment.

Hence, it may be said that agencies are created in two ways: one is through the constitution,
and the second is through act of parliament.

However, one important point that should be highlighted. Is that the independent agencies, which
have a constitutional basis, still require an enabling act of the parliament for their legal
existence? The only difference between the two modes of creating an agency is that when the
constitution requires the establishment of some agencies the house of people‘s representatives
has a duty to promulgate the enabling act for that specific agency.

When an agency is created only through the enabling act, in the absence of constitutional duty
from the parliament, its existence is totally dependent on the will or option of the parliament.
Apart from the above two modes, there is no other means of creating an agency. Neither the
prime minister, nor the council of ministers has the power to create an administrative agency.

Reasons for the Creation of Agencies

Agencies are created and assigned specific tasks by the legislature. They carry out the tasks
making decisions of various sorts and supervising the procedure by which the decisions are
carried out. There are many reasons why administrative agencies might be needed.

The main reasons for the creation of the administrative agencies.

A. Providing Specificity

• The legislative branch of government cannot legislate in sufficient detail to cover all aspects
of many problems.

• The house of the people‘s representatives cannot possibly legislate in minute detail and, as a
consequence, it uses more and more general language in stating its regulatory aims and
purposes.
• For instance, the house of people‘s representatives cannot enact a tax law that covers every
possible issue that might arise.
• Therefore, it delegates to the council of ministers and ministry of revenue the power to make
rules and regulations to fill in the gaps, and create the necessary detail to make tax laws
workable.
• In many areas, the agency has to develop detailed rules and regulations to carry out the
legislative policy.

• It is also true that courts could not handle all disputes and controversies that may arise.
• They simply do not have the time or the personnel to handle the multitude of cases.
• For instance, the labour relations board entertains and resolves so many numbers of
collective labour disputes between employees and employers.
• The creation of such adjudicatory agencies (usually known as quasi- administrative
agencies) is necessary, because of the fact that they 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.

• A reason many agencies are created is to refer a problem or area to experts for solution and
management.

B. Providing Protection

• Many government agencies exist to protect the public, especially from the business
community. Business has often failed to regulate itself, and the lack of self- regulation has
often been contrary to the public interest.

• For instance, the Environmental Protection Agency is created to regulate environmental

pollution. In the absence of such agency, business could not voluntarily refrain from
polluting the environment.

• The same can be said with respect to quality of private higher education and unjustified and
unreasonable increase in the price of essential goods. The Ministry of Education and
Ministry of Trade and Industry, regulate respectively both of these cases to protect
consumers and the public at large.
• Most of the time, an agency protects the public from the negative impacts of business
through regulation. When a business organization is given monopoly power, it loses its
freedom of contract, and a governmental body is given the power to determine the
provisions of its contract.

• Currently, we have the Electric Agency and Telecommunication Agency, which have the
power to set (agreed) the rate for the utility.

C. Providing Services

Many agencies are created simply out of necessity. If we are to have roads, the Somaliland
Roads Authority is necessary.

• Welfare programs require government personnel to administer them.

• Social security programs necessitate that there should be an agency to determine eligibility
and pay benefits.

• The Social Security Authority is established to process pension payment and to determine
entitlement to such benefit.

• The mere existence of most government programs automatically creates new agencies or
expands the function of the existing ones.

Structure and Organization

The structure and internal organization of an administrative agency may greatly vary depending
on the government policy and the programme it is expected to accomplish. Some of them may
have different departments enjoying a significant portion of power given to the agency by the
enabling act.

Usually, the arrangement of the internal organization will take so many factors into
considerations, like budget implication. However, the main objective of the form of structure is
aimed at ensuring efficiency and effectiveness in administration.

Since this requires expertise, such task is left to the executive branch. States always, the
constitution specifically authorizes the council of ministers to determine the structure and
organization of the administrative agencies.
Purpose of Administrative Agencies

Administrative agencies are established by the legislator to perform specific tasks assigned to
them by law.

A) Regulation

To control monopoly power

• Agencies are often created to replace competition with regulation. In this case the agency
may determine rate (e.g. transportation, or electricity).
• Sometimes the difference in bargaining power may be a ground for regulation, avoiding
monopoly power of one party. Such instances include regulation of banking, insurance and
labour relations.

To control excess profit

• The agency regulates business to ensure that business is not collecting excess profit, which
may endanger the laws of free market and also may pose a danger to consumers.
To compensate for externalities

• Externalities occasionally referred to as spillovers that occur when the cost of producing
something does not reflect the true cost to society for producing the goods.

• One example is manufacturing process that creates air pollution for which society pays
the cleanup costs.

• A business organization, unless otherwise it becomes sure that there is also corresponding
participation by other companies, will not install costly pollution control equipment.
To compensate for inadequate information

• Compensating for inadequate information is a justification for a great deal of legislation for
consumer protection.

• Purchasers of food, for instance, cannot analyze the nutritional content or the health
hazards of various food products so that there has to be some organ that ensures these tests
are fulfilled.

To compensate for unequal bargaining of powers

• Contracts between banks & customers, insurers & the insured, employees & employers are
adhesive in their nature.

• Either the consumer has to take it or leave it.

• Hence, it becomes self-evident to regulate and set minimum standards to minimize the
effect of unequal bargaining of power.

B) Government exactions
• In addition to regulation, administrative agencies may also engage in government
exactions. Government exactions are the traditional powers and responsibilities of
agencies. Such functions include collection of tax and military conscription.

C) Disbursement of money or other commodities

• The social security programme and other government systems of insurance or
compensation, agencies disburse public money as payment of pensions for veterans or
assistance for the aged, the disabled, the unemployed and generally the needy. The
payments may be directly through cash or food rations.

D) Provision of goods and services

• Nowadays, the government is in charge of building and maintaining roads, high ways and
dams, the provision of police force and other protective services.
 • Funding public education and the health service may also be mentioned as additional
examples.

• More recent additions include mass transit communications, satellite systems,

government research and development programmes, public hospitals and public housing.

Powers of Administrative Agencies

Nature and Source of Power of Administrative Agencies

At federal and state levels, administrative agencies gain whatever power they have by
delegation-that is to say, that they don‘t have inherent, constitutionally mandated power to act.
Rather, a, higher level of government, normally the legislature, must delegate some of its own
power to the agency.

How much power is that? It depends. In order for an agency to exist, it must first be created by
the enabling legislation. His statute is a device that sets up the basic framework for the agency,
and the set of rules and limitations by which it must live.

These may include a variety of things including organizational matters, staffing, salaries and
procedures for conducting business. The most important is the delegation of power and its
limitation. An agency may only exercise authority within the delegation of authority provided
for in its enabling legislation, or subsequent legislation granting specific additional power.

The limitation of agency power is an important concept, since actions taken by an agency which
turn out to be outside the scope of its authority are not binding.

A good deal of litigation between agencies and regulated parties concerns the question whether
the agency acts within the scope of authority delegated to it, or whether it acts in a manner
contrary to the act of the superior branch of government.

Meaning and Significance of the Enabling (Establishment) Act

The constitutions impose a duty on the house of people‘s representatives to create some
agencies.
Can you mention some of those agencies?

Even though their establishment has a constitutional basis, is there any way tin which they may
materially exist in the absence of the act of the parliament?
• Whatever forms a new administrative agency takes the legislature must enact a statute
creating the agency. This statute, sometimes called an agency‘s organic act, parent act, or
establishment act but more frequently is referred to as an agency‘s enabling act, is the
fundamental source of an agency‘s power.
• The principle that the legislature creates agencies and sets limits on their authority should be
regarded as cardinal rule number one of the administrative laws.
• Agencies make a great deal of policy within the boundaries of their enabling acts. They also
establish procedures for efficient and fair decision – making.

• Enabling acts and administrative procedure acts often establish only minimum standard and
requirements for individual agencies

Classification of Powers of Administrative Agencies

Administrative agencies, in order to realize their purpose efficiently and effectively, need wider
power and discretion. For this reason, they blend together three powers of government:
executive, legislative and judicial powers. Even though in principle the latter two powers belong
to the legislature and courts, granting such powers has become a compulsive necessity for an
effective and efficient administration. Administrative agency rules and regulations often have
the force of law against individuals.

The following is a brief discussion of the nature of the three powers of the administrative
agencies.

Legislative (Rule Making) Power

• Legislative power of administrative agencies, usually known as rule- making power and
more formally delegated legislation, is the power of agencies to enact binding rules through
the power delegated to them by the legislator.

• The complex nature of the modern state is that such elected representatives are not capable
of passing laws to govern every situation. Many of their lawmaking powers, as well as the
power to administer and implement the laws, are therefore delegated to administrative
agencies.

• When legislative power is delegated to administrative agency, it has to be exercised fairly

and only with a view to attain its purpose. The agency should also enact rules within the
limits of delegation set by the lawmaker.
• When an agency exercises its judicial function, it is engaged in adjudication, a process very
much similar with a trial court.
• While adjudicating a case, it will conduct an oral hearing with direct and cross examination,
administers oath, decides on the admissibility of evidence and may compel an individual or
a company to produce evidence.
• Then by weighting evidences of the applicant and respondent applies and interpreters the
law to give a reasoned decision.
Judicial (Decision – Making) Power

• Efficient and effective administration also requires that those entities in charge of
implementing the law be armored with judicial power, to some extent, similar to the power
of the ordinary courts. Enforcement of law demands imposition of sanction and taking
administrative measures and decisions.

• When agencies exercise their judicial powers, they are in effect applying the facts to the law
just like a court.

• Consequently, they determine rights, entitlements and benefits of individuals. The decisions
may greatly affect individual‘s rights and benefits.

Administrative Power

• Administrative power is the residual power that is neither legislative nor judicial. It is
concerned with the treatment of a particular situation and is devoid of generality. It has
 no procedural obligations of collecting evidence and weighing argument. It is based on
subjective satisfaction where decision is based on policy and expediency.

• Advisory and investigative power of agencies may be mentioned as two typical examples
of administrative power. In its advisory function, an agency may submit a report to the
president or the head of executive and the legislature.

• Cases falling under advisory function include proposing a new legislation to the
legislature, and informing the public prosecutor the need to take measure when there is
violation of law. Disclosing information to the general public that should be known in the
public interest and publishing advisory opinions are also regarded as advisory
(administrative) functions.

• Investigation is one of the major functions of administrative agencies. While exercising

their investigative powers, agencies investigate activities and practices that may be
illegal.

• Because of this investigative power, agencies can gather and compile 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.

• In exercising their investigative functions, agencies may use the subpoena power. A
subpoena is a legal instrument that directs the person receiving it to appear at a specified
time and place either to testify or to produce document require reports, examine witnesses
under oath, examine and copy documents, or obtain information from other governmental
offices.

• This power of investigation complements the exercise of the agency‘s powers, especially
the power to adjudicate.