Administrative Law -Chapter (1)

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Contents

DEFINITION, NATURE AND SCOPE OF ADMINISTERATIVE LAW

Chapter I Pages

1. Definition of Administrative Law 2

1.2 The Nature and Scope of Administrative Law 4

1.3 The Development of Administrative Law 8

1.4 Separation of Powers 10

1.4.1 The Functions of Legislature, Executive and Judiciary 10

1.4.2 The Doctrine of Separation of Power 11

1.4.3 Practice in Various Countries 16

1.4.4 Practice in U.S.A 18

1.4.5 Practice in Other Countries 21

1.5 Separation of Powers in Myanmar 22

Key Terms 33

Assignment questions 34

Short Questions 35

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CHAPTER I

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DEFINITION, NATURE AND SCOPE OF ADMINISTERATIVE LAW

I. Definition of Administrative Law

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Maitland, in his lectures on the Constitutional History of England delivered

in 1887-88 discussed the definitions of Constitutional Law and Administrative Law

merely He determined what person or classes of persons bore the sovereign powers,

while administrative law determined the ends and modes to and in which the

sovereign powers exercised.

Maitland Holland

The Constitutional History of England

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Maitland regarded this definition of Constitutional law as too narrow.

Maitland ၏ ။

He next turned some statement by Holland whose views he summarized by saying I

think we catch his idea if we say that while constitutional law deals with structure,

Administrative law deals with function.

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Holland ါ

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Professor H.W. R Wade said, “the easiest though perhaps the least satisfactory, of the

possible definitions is to be found by appropriating one of the three sectors of the traditional

separation of powers. If the powers and authorities of the state are classified as legislative,

administrative and judicial: then administrative law might said to be the law ႕which

concerns administrative authorities as opposed to the others.

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Sir Ivor Jenning has written; Administrative law is the law relating to the

Administration. It determines the organization powers and duties of administrative

authorities.

This is the most commonly accepted definition in 1960s, but it is not the

satisfactory one, because which in its usual meaning.

Sir Ivor Jenning

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The Law and the Constitution

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S.A de Smith said; we can take it to mean the law relating to public administration. In

other words, it is the law relating to the organization, composition, functions and procedures

of public authorities and special statutory tribunals, their impact on citizens.

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S.A de Smith

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The American jurist Frank J Good now in his “Principle of Administrative Law of

United States”, observed as” Administrative Law is, therefore, that part of the law which

fixes the organization and determines the competence of the authorities which execute the

law, and indicates to the individual remedies for the violation of his rights.”

Frank J Good

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F. Trowbridge in his Federal Administrative Law having considered the various

definitions concluded” thus it may be said, at least in a practical sense, that “Administrative

Law is a set of legal principles governing the acts of public agents which conflicts with

asserted private rights and which are not performed directly by legislative, or judicial bodies

of the government.

F. Trowbridge

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However, the most common accepted definition is “Administrative Law is the law

relating to public administration”.

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1.2 The Nature and Scope of Administrative Law

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Professor H W R Wade mentioned in his book of Administrative Law that;

“Administrative Law is the relating to public administration.

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But Foulkes, in his “Introduction to Administrative of Law” mentioned that;

Administrative Law concerned not only with powers but with liabilities, both of authorities

and their employees.

Foulkes

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A.W Broadly said in his Constitutional and Administrative law that the

Administrative law is a branch of public law which is concerned with the composition,

powers, duties, rights and liabilities of various organs of government which are engaged in

administration.

A.W Broadly

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On the broad definition, administrative law includes not only the law relating to the

structure of central and local government, but also the law dealing with the social service the

public utilities and control and the regulating of private activities, whether for social,

economic or environmental reasons.

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Administrative law may be looked at in two ways, first as an instrument of control of

the exercise of administrative powers and secondly as an instrument for getting thing done by

the creation through legal processes of institutions and the granting of them of powers and

duties.

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One of the commonest administrative activities is legislation under powers delegated

by the Parliament, and their delegated legislation is certainly a subject of administrative law.

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A more useful approximation is to say the administrative law is concerned with the

operation and control of the powers of administrative authorities, with emphasis on function

rather than on structure.

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So a study of administrative law will emphasize what happen when the administrative

action impinges on private rights and when claims and controversies arise in the course of

administrative process and they lay particular stress on machinery for the redress of wrongs

and grievances.

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Professor Wade said “since it deals with governmental power, administrative law

itself is part of constitutional law and he also said that: Administrative law includes the whole

constitutional law except the parts of which concern the legislature and judiciary”.

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ါ H W R Wade ါ

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In conclusion Administrative Law is to do with public authorities in their powers,

authorities and functions; it is concerned also with the bodies which exercises these powers.

In a study of Administrative Law, the emphasis is the use of administrative power and

therefore of protection against alleged abuse of power.

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1.3 The Development of Administrative Law

The development of this law is traceable to cause of an essentially and practically

requirement of administration.

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After the Second World War there have been profound changes in the general, social

and economic trends and in the attitude towards administrative and social control.

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As a consequence, the field of government activities and the exigencies of

administration have been expending from time to time.

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Therefore, the legislature has to depend more and more on the administrative

machinery for the satisfactory implementation and execution of its policies.

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This has led to the investing of wider power by the legislatures in the administrative

agencies to be exercised on its discretion.

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Hence arose the necessity of delegating to administrative agencies the functions of

working details and also to supplement and complement the polices and the rules of conduct

expressed in the statutes.

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With the increase of the power of the administrative bodies it has become necessary

to provide guidelines for the first exercise of their power.

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In order to prevent the abuse of that power, the court have to intervene and control

indeed, because of this situation the judiciary must play an important role to control the

exercise of discretionary power by the administrative authorities. It could be described

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administrative law as essentially the law of judicial review or court control against executive

excess.

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The growing complexity of the present day raising problems of equal complexity

requires the study of administrative law. So that the administrative law has become an

independent branch of study.

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It was denied recognition for long both in the United Kingdom and the United States

of America in the days of Dicey.

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In 1946 a Select Committee on Legal education urged that administrative law was a

subject fit to be taught at Universities in England.

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In 1888 Maitland, the legal and constitutional historian observed the existence of

Administrative law. But the powerful influence of Dicey who alleged repudiates its existence

in 1885 continued to affect the thinking till the appointment of the committee on Minister’s

power in 1929. Even in 1935 Lord Hewart, then the Lord of Justice of England dismissed the

term Administrative law as Continental Jargon.

1888 Maitland

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Lord Hewart

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In the United States of America the man, first to takes up the administrative law, as a

separate subject was good now who brought out his book on Comparative Administrative

Law in 1893.

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In Myanmar, we had started to study this subject as one of LL.B course in 1967 at the

beginning of the new system of legal education at Arts and Science University of Yangon.

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Formerly the administrative law was dealt with the books of Constitutional Law and a

separate treatment of subject was rarely taken.

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Now, it has become an independent branch of study books on administrative law has

separated from Constitutional Law. Besides it become the most rapidly developing area of

public law in various countries.

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1.4 SEPARATION OF POWERS

1.4.4 The Functions of Legislature, Executive and Judiciary

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The functions of government have often been divided into three classes. They are

legislative, executive (or administrative) and judicial.

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The legislative function involves the enactment of general rules determining the

structure and power of public authorities and regulating the conduct of citizens and private

organizations. In the United Kingdom, legislative authority is vested in the Queen in

Parliament. In the U S A legislative power is vested in the Congress and Japan it is vested in

the Diet.

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The executive or administrative involves the continuing maintenance of a state’s

government. It comprises the whole croups of authority to govern, other than that which

involved in the legislative functions of Parliament and the judicial functions of the courts.

Historically the Executive was identified with the sovereign, in whose name many executive

acts are still performed by the president, Prime Minister, Cabinet and other ministers. But the

Executive to day includes all those officials, public authorities and other agencies by which

executive functions are performed.

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The judicial function is to determine disputed question of fact and law in accordance

with the law lay down by Parliament and expounded by the Courts. The function is exercised

mainly in the civil and criminal courts by professional judges.

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It may be said that within a system of government, these are legislative executive and

judicial functions to be performed and that the primary organs for discharging these functions

are respectively the legislature, the executive and the courts.

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1.4.2 The Doctrine of Separation of Power

Constitution of some countries is based on the doctrine of separation of powers.

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The doctrine has emerged in several forms at different periods and in different

contexts.

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It is traceable back to Aristotel; it was developed by the Englishman John Locke

in17th

century. The doctrine of separation powers was developed by the French Jurist,

Montesqueu, who based his exposition on the British Constitution of the early 18th

century.

Aristotel ၁ John

Locke ။

Montesqueu

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The essence of the doctrine of Montesqueu is that:

Montesqueu

When the legislative and executive powers are united in the same person, or in the

same body of magistrates, there can be no liberty………. Again there is no liberty power be

not separate from the legislative and executive. Were it joined with the legislative, the life

and liberty of the subject would be exposed to arbitrary control: for the judge would then be

the legislator. Were it joined to the executive however, the judge might behave with violence

and oppression. There would be an end to everything, were the same man, or the same body,

whether of the nobles or of the people, to exercises these three powers, that of enacting laws,

that of executing the public resolutions, and of trying the cause of individuals.

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Wade and Phillips observed the statement of Montesquieu that, within a system of

government based upon law the judicial should be exercised by a body separate from

legislature an executive Montesquieu did not, it may be surmised, mean that legislature and

the executive ought to have no influence or control over acts of each other, but only that

neither should exercise the whole power of the other.

Montesquieu Wade and Philips

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S.A de Smith restated the formulation of Montesquieu and his Constitutional and

Administrative Laws as follows:

S.A.de Smith

Montesquieu ၏

The doctrine, as propounded by Montesquieu and his follower, may be stated briefly:

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1. There are three main classes of governmental functions: the legislative, executive and

Judicial

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2. There are (or should be) three main organs of government in a state :the legislature,

executive and judiciary.

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3. The concentrate more than class of function in any one person or organ of

government is a threat to individual liberty. For example, the Executive should not

be allowed to make laws or adjudicate on alleged breaches of the law; it should be

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confined to the executive functions of making and applying policy and general

administration.

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Even if one accepts the first two positions, one is not obliged to accept the third. To

concentrate a large quantity of power in the hands of one person, in the absence of proper

safeguards, is surely more dangerous than to combine a few powers analytically different in

quality in the same hands, if adequate safeguard exist.

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And rigorous segregation of functions may be highly inconvenient. In many countries

subscribing to versions of separation of powers doctrine, rule-making powers have been

vested in the Executive because it is manifestly impracticable to repose such powers

exclusively in the Legislature. The third proposition stated above is therefore both extreme

and doctrine, and is not taken literally by proponents of the theory.

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Meaning of Separation of Powers given by Wade and Phillips is as follows:

Wade and Phillips ါ ။

(a)that the same persons should not form part of more than one of the three organs of

government, for example that ministers should not sit in Parliament:

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(b) the one organ of government should not control or interfere with the work of another,

for example that the Judiciary should be independent of the executive or that minister

should not be responsible to Parliament.

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(c) that one organ of government should not exercise the functions of another, for

example that ministers should not have legislative.

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In considering each of these aspects of separation it needs to be remembered that

completed separation of powers is possible neither in theory nor in practice.

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According to the above mentioned accepted doctrines by different jurists we can see

that Montesquieu lays emphasis on absolute separation contrast with S.A de Smith.

Wade and Phillips conceptions which denied the complete separation of powers.

Montesquieu

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1.4.3. Practice in Various Countries

Practice in United Kingdom

In the absence of a written constitution there is no formal separation of powers in U.K

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It has mentioned in the report of the Committee on Minister’s Power in the following

words:-

Committee on Minister’s Power ါ ။

“in the British Constitution there is no such thing as the absolute separation of

legislative, and judicial powers; on practice it is inevitable that they overlap. In such

Constitution those of France and the United States of America, attempts to keep them rigidly

apart have been made, but have proved unsuccessful. That distinction is nonetheless real and

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important. One of the main problems of modern democratic state is how to preserve the

distinction whilst avoiding too rigid an insistence on it, in the wide borderland where it is

convenient to entrust minor legislative and judicial functions to executive authorities.”

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According to the above report it can be construed that instead of applying the doctrine

in a strict sense in the functional organization of the government it should be deemed to

require a system of check and balances among the three department of government while

opposing monopolization of government power by any of the three departments.

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In practice, in U.K, while the functions of legislature and executive are closely inter-

related and ministers are members of both, the two institutions of Parliament and Government

are distinct from each other. The formal process of legislation is different from the day to day

conduct of government, just as the legal effect of as Act of Parliament differs from that of an

1 Report of the Committee on Ministers Powers

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executive decision. Practical necessity demands a large measure of delegation by Parliament

to executive power to legislate. The independence of the judiciary is maintained, but many

disputes which arise out of the process of government are entrusted not ordinary courts but to

administrative tribunals: recent legislation has sought to maintain the impartiality of these

tribunals and to preserve essential features of fair judicial procedure.

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1.4.4 Practice in U.S.A

In the U S Constitution of 1787 the separation of powers was clearly expressed. The

frames of the constitution intended that a balance of powers should be attained by vesting

each primary constitutional function in a direct organ. Possibly they were initiating the form

of the British constitution but by the time in Britain executive power was passing from the

crown to the cabinet. The U S Constitution vests legislative powers in Congress, consisting of

a Senate and a House of Representatives (article 1), executive power in the president(article

2), and judicial power is the supreme court and such other federal courts as might be

established by Congress.Article (3). The President holds office for a fixed term of four years

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and is separately elected: he may therefore be of a different party from that which has

majority in either or both Houses of Congress. His powers, like those of Congress are

declared by the constitution. While the head of the chief departments of state are known as

the Cabinet, they are individually responsible to the President and not to Congress. This

system of a Presidential executive is quite different from that of Cabinet government in

Britain.

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Neither the President nor members of his Cabinet can sit or vote in congress; they

have not direct power of initiating Bills or securing their passage through Congress. The

President may recommend legislation in his messages to Congress, but he cannot compel it to

pay heed to his recommendations while he has a power to veto legislation passed by

Congress. Treaties may be negotiated with the President, but must be approved by a two-

thirds majority of the senate. The President has power to nominate to certain key offices,

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including judges of the Supreme Court, but the senate must confirm these appointments and

may refuse to do so. The President himself is nor directly responsible to Congress for his

conduct of affairs in normal circumstances he is irremovable from office, but the constitution

does authorize the president to be remove for office by the process of impeachment at the

hands of the Senate, for treason, bribery, or other high crimes and misdemeanors (article 2)4).

The prospect of such impeachment was the immediate cause of president Nixon’s resignation

form office in 1947 following his complicity in Watergate affairs once appointed, the

juiceless of Supreme Court are independent both of Congress and President, although they

too may be removed from office by impeachment. Early in the history of the United States,

the Supreme Court assumed the power, notable by the historic decision of Chief Justice

Marshall in Marbury V Madison (1803), Cranch 137, of declaring both the acts of legislative

and the acts of President to be unconstitutional. The Supreme Court has ruled that the

doctrine of separation of powers express in the Constitution excludes any extensive

delegation on of legislative power by Congress to executive agencies.

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Marbury

V Madison (1803), Cranch 137, )

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Even in the US. Constitution, there is not a complete separation of powers between

the executive, legislative and judicial function, if by this is meant that each power can be

exercised in complete isolation from the others. Indeed, having established the threefold

allocation of functions as a basis, the Constitution proceeds to construct an elaborate system

of checks and balances designed to enable control and influence to be exercised by each arm

of Constitution upon the others.

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1.4.5 Practice in Other Countries

Many other constitutions have been influenced by the separation of powers. In France,

the doctrine has been of great importance but it has manifested itself very differently from the

American version: thus it is considered to floe from the separation of powers that the ordinary

civil and criminal courts in France should have no jurisdiction to review the legality of acts of

the legislature or executive: in place of ordinary courts the Conceal d’ Etta, structurally part

of the executive. The Constitution of the Fifth Republic adopted in 1958 was intended to

create a stronger Executive: the circumstances in which the Government could be complied

to resign were restricted, and the powers of the President to rule by decors were enlarged.

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1.5 Separation of Powers in Myanmar Naing Negun

In Myanmar we will study under three constitutions. The first one is the Constitution

of the Union of Myanmar 1947, the second one is Constitution of Socialist Republic of the

Union of Myanmar and the third one is Constitution of Republic of the Union of Myanmar

2008.

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Under 1947 constitution, the President is the titular Head of State. The executive

authority of the Union shall be vested in the President (s 59) The President shall be elected by

both chamber of Parliament in joint session by secret ballot (46) The President shall, on the

nomination of the Chamber of Deputies, appoint a Prime Minister who shall be the head of

the Union Government.(s 56(1)) He shall also appoint the other members of the Union

Government.(s(56)2) The Union of Government shall consist of the Prime Minister and other

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members appointed under (s 56 and 114) and the Government shall be collectively

responsible to the Chamber of Deputies, (s 115).

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Section (s 65) of the Constitution of the Union of Burma says, the legislative power of

the Union shall be vested in the Union Parliament besides s 80 vested in Parliament the sole

and exclusive power of the making law in the Union. The proviso to the section adds that the

power may be delegate to make rules and regulations under and Act; but the rules and

regulations so made must be laid before Parliament for approval.

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A bills passed by a simple majority by both Chamber goes to the President for his

signature and promulgation and the President shall promulgate very law enacted by the

Parliament.

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Section 141 of the constitution lays down that all judges shall be independent in the

exercise of their judicial functions and subject only to the laws and the constitution. Supreme

Court is the final Court of Appeal for the Union and it has the right to issue special writs,

which may also grant special leave to appeal from any judgment, decree or final order of any

court. The Supreme Court is a Court of Record, and has supervisory powers over all courts in

the Union, and is decisions are binding upon all those courts. (s 152)

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There is no doubt that the ideal of the independence of the Judiciary was accepted by

the framers of the constitution.

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Continue, we shall proceed to the separation of powers under the Constitution of

Socialist Republic of the Union of Myanmar.

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Article (a) of the constitution mentioned that “National sovereignty shall reside in the

entire State”. The important article is (12) which state "The sovereign powers of the State,

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legislative, executive and judicial reside in the people, compresing all national races whose

strength is based on peasants and workers. The Pyithu Hluttawa, elected by citizens having

the right to vote, exercise the sovereign power invited in it by the people and delegates to

Organs of State Power in accordance with the Constitution".

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The separation of powers could be seen in the context of article (13) which provides

that:

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The Pyithu Hluttaw shall exercise the legislative power solely by it-self while it may

delegate executive and judicial powers to the Central and Local Organs of State Power

formed under the Constitution.

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Besides, article 44 vests in the Pyithu Hluttaw the sole power of legislation. But

according to article 45, the Pyithu Hluttaw may delegate executive and judicial powers of the

State to Central and Local Organ of State Power in accordance with the constitution.

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According to above mentioned provisions, the sovereign power is vested in the Pyithu

Hluttaw exercising the legislative power by is self and may delegate the other two of

executive and judicial powers. Under, article 83, the Council of Minister is the highest

executive organ of the state, but it is responsible to the Pyithu Hluttaw when Pyithu Hluttaw

is in session and to the Council of State when Pyithu Hluttaw is no session.

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If we look at judiciary, “The Council People’s Justice” is the highest judicial Organ

on the state and; it shall form the necessary judicial court only with its members and

administer justice (A(103 (a)&(b).

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The Council of People’s Justice shall be responsible to the Pyithu Hluttaw and shall

report to the Pyithu Hluttaw on the state of the administration of justice. (A. 104) It shall

supervise all judicial organs and courts within the state.

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Therefore we can see that the Council of Ministers is highest executive organ and The

People’s of Justice is the highest judicial organ of the State under the control of the Pyithu

Hluttaw.

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There are two Councils in order to control the powers of executive and judiciary.

They are (1) the Council of People’s Attorneys and (2) the Council of People’s Inspectors.

They are responsible to the Pyithu Hluttaw. Under article 112(b) the Council of People’s

Attorneys protects and safeguards the rights and privileges of the working people. Therefore

an aggrieved party can be remedied through the Council of People’s Attorney.

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The Council of People’s Inspectors is the highest organ of inspection of public

undertaking.

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So, there is unity of power and functions are separated under the control of Pyithu

Hluttaw. There is also check and balance through the Council of People’s Attorney and

Council of People’s Inspectors.

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As for the Administrative machinery was broken down, the State Law

and Order Restoration Council took over the power of the State on 18 th

September 1988. On 27 th May 1990, multi-party democracy general

election was held and from 9 th January 1993, National Convention for the

new Constitution has been held.

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Under the State Peace and Development Council, People's

Referendum was held on 10 th May, 2008 throughout the country, relating to

the draft Constitution. The drafting commission on the new constitution

was formed in 2007. The final draft was concluded in 2008.

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The State Peace and Development Council issued a notification,

dated 29th May, 2008, declaring that the Constitution of the Union of

Myanmar has been promulgated by the People's Referendum.

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The Constitution of the Republic of the Union of Myanmar 2008

contained 15 Chapters and 457 Articles with five schedules. The Union

Judiciary Law, Union Attorney General Law 2010, Union Goverment Law

2010, Laws relating to Pyidaungsu Hluttaw, Pyithu Hluttaw and Amyotha

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Hluttaw were enacted in 2010 by the State Peace and Development Council

according to this Constitution.

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The Constitution based on the principle of separation of power and

did not accept the doctrine of unified power. The three branches of

sovereign power are separated and exert reciprocal control, check and

balance among themselves. These powers are shared among the Union,

Regions, States and Self-Administered Areas. Section (11)

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Legislative power was vested in the Pyidaungsu Hluttaw. Therefore

Pyidaungsu Hluttaw is the highest organ of legislative power. Pyidaungsu

Hluttaw consists of two Hluttaws that is Pyithu Hluttaw and Amyotha

Hluttaw.

။

ါ

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The legislative power of the Union is shared among the Pyidaungsu

Hluttaw, Region Hluttaws and State Hluttaws. Legislature power stipulated

by this Constitution shall be shared to the Self-Administered Areas. Section

(12)(a)

။

။

၁ )

The Pyidaungsu Hluttaw shall have the right to enact law for the

entire or any part of the Union related to matters prescribed in Schedule

One as the Union Legislative List.

၁) ါ

။

The Region or State Hluttaw shall have the right to enact laws for the

entire or any part of the Region or State related to matters prescribed in

Schedule Two as the Region or State Hluttaw Legislative List.

) ါ

။

33

Key Terms

Administrative -

Constoitional -

Structure -

Fiction-

Traditional separation of powers -

Legislative -

-

Judicial -

Tribunals -

Employees -

Alleged -

Abouse of power -

Doctrine of Separation of Power -

Function -

Legislature -

C P p I p -

Council P p -

C P p J -

C -

34

Assignment Questions

1. Define and explain the meaning of Administrative Law.

2. What is the Nature of Administrative Law?

3. Study and development of Administrative law.

4. What are the functions of Legislature, Executive and Judiciary?

5. Explain the doctrine of separation of powers by Montesquieu.

35

Short Questions

1. What is the doctrine of separation of power by Montesquieu?

2. What is the meaning of separation of power by Wade and Phillips?

3. Define the meaning of Administrative Law by Sir Ivor Jenning.

4. Define the term Administrative Law by Foulkes.

5. Define the term Administrative Law by Professor H.W.R Wade.

6. Define the term Administrative Law by S.A.de Smith.

7. Define the term Administrative Law by A.W Broadly.

8. Explain about administrative law in practice of France.

.