Definition and Sources of Administrative Law

Definition of Administrative Law

Administrative law is that branch of public law which deals with the organisation, powers, functions and duties of administrative (executive) authorities, and which governs the relationship between these authorities and the citizens. It lays down the rules by which the actions of the government and its agencies are controlled, so that the administration does not become arbitrary or despotic.

Some important definitions:

• Ivor Jennings: "Administrative law is the law relating to the administration. It determines the organization, powers and duties of administrative authorities."
• K.C. Davis: "Administrative law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action."
• Wade: "Administrative law is the law relating to the control of governmental power."

In short, administrative law is the branch of law that keeps the executive within the bounds of law and protects the rights of citizens against the misuse of administrative power.

Sources of Administrative Law

Administrative law has grown from many sources. The main sources are as follows:

1. Constitution

The constitution is the supreme and primary source of administrative law. It creates the organs of the state, distributes powers among them, and lays down the fundamental rights of citizens. In Nepal, the Constitution of Nepal, 2072 provides for the executive, public service, constitutional bodies and fundamental rights, all of which form the base of administrative law.

2. Statutes (Legislation)

Statutes are the most important source of administrative law. Laws made by the legislature create administrative authorities, define their powers, functions and procedures. Examples include the Administrative Proceedings (Regulation) Act, 2031; the Local Government Operation Act, 2074; the Public Service Commission Act; and the Commission for the Investigation of Abuse of Authority Act. These laws directly regulate administrative action.

3. Delegated Legislation (Subordinate Legislation)

When the legislature delegates its law-making power to the executive, the rules, regulations, by-laws and orders made by the executive become a source of administrative law. For example, rules framed by ministries, orders of the Nepal Rastra Bank, and by-laws of local bodies. Such delegated legislation provides the detailed working rules of administration.

4. Judicial Decisions (Case Law)

The decisions of the courts, especially the Supreme Court, are an important source of administrative law. Through its judgments in writ petitions and appeals, the court interprets statutes, lays down principles such as natural justice, ultra vires, and judicial review. In Nepal, the precedents of the Supreme Court bind all lower courts and administrative bodies.

5. Administrative Decisions and Orders

Decisions, orders, circulars and directives issued by administrative authorities themselves also become sources of administrative law. They guide the conduct of officials and create rules of practice. For example, circulars of the Ministry of Finance or directives of the Public Service Commission.

6. Ordinances

When the legislature is not in session, the President may issue ordinances on the recommendation of the Council of Ministers. Such ordinances have the force of law and regulate administrative matters until approved or replaced by the legislature. They are therefore a source of administrative law.

7. Rules of Natural Justice and Equity

The principles of natural justice — audi alteram partem (hear the other side) and nemo judex in causa sua (no one shall be judge in his own cause) — along with principles of equity and good conscience, are important sources of administrative law. They fill the gaps in statutes and control arbitrary administrative action.

8. Customs, Conventions and Usages

Customs and conventions followed in administrative practice also give rise to rules of administrative law. For example, the convention that the senior-most justice acts as the Chief Justice, or that the Public Service Commission conducts recruitment through open competition. These practices, when long established, acquire the force of law.

9. International Treaties and Conventions

International treaties and conventions ratified by the state also influence administrative law. They impose obligations on the government and require administrative bodies to act in accordance with international standards. For example, conventions on human rights and anti-corruption.

10. Textbooks and Writings of Jurists

The writings of eminent jurists such as Dicey, Jennings, Wade and Davis are also regarded as a source of administrative law. They explain, criticise and systematise the principles of administrative law, and are often referred to by courts and administrators.

Conclusion

Administrative law is thus a growing branch of law with many sources. The constitution and statutes are its primary sources, while delegated legislation, judicial decisions, administrative orders, natural justice, customs, treaties and juristic writings are its secondary sources. Together they regulate the powers of the administration and protect the rights of citizens.

Doctrine of Rule of Law and Its Implementation in Nepalese Administrative Law

Meaning of the Doctrine of Rule of Law

The doctrine of rule of law is a fundamental principle of administrative law which means that the law is supreme and every person, including the government and its officials, is subject to the ordinary law of the land. It implies that no one is above the law, and the government must exercise its powers according to law and not according to the whims of officials.

The doctrine was systematically explained by A.V. Dicey in his book "The Law of the Constitution" (1885). According to Dicey, the rule of law consists of three essential elements:

1. Supremacy of Law: No person can be punished except for a breach of law established before the ordinary courts. Arbitrary power and discretionary authority have no place.

2. Equality before Law: Every person, irrespective of position or status, is subject to the same law and the same courts. No one enjoys special privileges or exemptions.

3. Predominance of Legal Spirit: The rights and freedoms of individuals are not merely written in a constitution but are the result of judicial decisions and the ordinary law of the land.

In short, the rule of law means "government by law, not by men" (lex rex, not rex lex).

Implementation of the Doctrine in Nepalese Administrative Law

The doctrine of rule of law has been implemented in Nepalese administrative law in the following ways:

1. Constitutional Guarantee: The Constitution of Nepal, 2072 B.S. has incorporated the rule of law as a fundamental value. Article 4 provides that the sovereignty of Nepal is vested in the people, and Article 20 guarantees the right to justice. Article 18 ensures equality before the law and equal protection of the law. These provisions reflect Dicey's concept of equality before law.

2. Supremacy of Law: In Nepal, all administrative actions must be based on law. No administrative authority can exercise any power without legal authority. The principle of ultra vires is applied, meaning any act done beyond the legal authority is void. This upholds the supremacy of law.

3. Equality Before Law: Article 18 of the Constitution guarantees that all citizens are equal before the law and no person shall be discriminated against on grounds of origin, religion, race, caste, sex, etc. This reflects the rule of law principle that all persons are subject to the same law.

4. Judicial Review: The courts in Nepal have the power to review administrative actions. The Supreme Court, under Article 133, can issue writs such as habeas corpus, mandamus, certiorari, prohibition, and quo warranto against administrative authorities. This ensures that administrative actions conform to the law and protects citizens from arbitrary exercise of power.

5. Administrative Tribunals: Nepal has established administrative tribunals to hear disputes between citizens and administrative authorities. The Administrative Court and other quasi-judicial bodies ensure that administrative decisions are made according to law and justice.

6. Right to Constitutional Remedies: Article 46 of the Constitution guarantees the right to constitutional remedies. Any person whose fundamental rights are violated by administrative action can directly approach the Supreme Court or High Court for enforcement of such rights. This is a strong implementation of the rule of law.

7. Principles of Natural Justice: Nepalese administrative law follows the principles of natural justice — audi alteram partem (hear the other side) and nemo judex in causa sua (no one should be judge in his own cause). Administrative authorities must follow fair procedure while making decisions affecting citizens.

8. Delegated Legislation: The legislature delegates law-making power to the executive, but such delegated legislation must conform to the parent Act. Courts can declare delegated legislation invalid if it exceeds the limits of the parent Act. This maintains the supremacy of law.

9. Transparency and Accountability: The Right to Information Act, 2064 B.S. and the Good Governance Act, 2064 B.S. have been enacted to ensure transparency and accountability in administration. These laws strengthen the rule of law by making administrative actions open to public scrutiny.

10. Ombudsman (Prabidhik Adhikaran): The institution of the Ombudsman in Nepal investigates complaints against administrative authorities for maladministration, corruption, and abuse of power. This provides an additional check on administrative arbitrariness.

Conclusion

The doctrine of rule of law is the cornerstone of Nepalese administrative law. Through constitutional guarantees, judicial review, administrative tribunals, principles of natural justice, and institutions like the Ombudsman, Nepal has made significant efforts to implement this doctrine. However, challenges such as political instability, corruption, and weak enforcement still remain. For the effective implementation of the rule of law, the judiciary must be independent, administrative authorities must be accountable, and citizens must be aware of their rights.

Delegated Legislation

Delegated legislation (also called subordinate legislation) means the law-making power exercised by the executive or other subordinate authorities under authority conferred on them by the legislature. The legislature frames only the broad policy and principles in the parent Act and delegates the power to make detailed rules, regulations, bye-laws, orders, etc. to the executive. Such rules derive their validity from the parent Act and cannot go beyond it. In Nepal, for example, an Act passed by Parliament authorises the Government to frame rules for its implementation.

Causes for the Growth of Delegated Legislation

1. Pressure on legislature time: Modern legislatures are busy with policy matters and cannot spare time to draft detailed rules.
2. Technicality of subject matter: Matters like taxation, banking, aviation and environmental standards require expert knowledge, which legislators may lack.
3. Flexibility: Rules can be amended quickly to meet changing circumstances, whereas amending an Act is a lengthy process.
4. Emergency situations: During war, natural disaster or economic crisis, the executive must act promptly; delegated powers allow immediate action.
5. Complexity of modern administration: The welfare state undertakes many functions, requiring detailed and continuous rule-making.
6. Experimental nature of legislation: When a new policy is introduced, the legislature lays down only the framework and leaves details to be filled in by experience.
7. Detailed and procedural matters: Matters of mere detail and procedure are better handled by the executive than by the legislature.
8. Local adaptation: Rules can be adapted to local conditions by local authorities.

Judicial Control of Delegated Legislation

The judiciary controls delegated legislation mainly through the power of judicial review. The courts do not examine the policy or wisdom of the delegated legislation but test its legality. Control is exercised on the following grounds:

1. Ultra vires the parent Act: Delegated legislation is invalid if it goes beyond the powers conferred by the parent Act, or if it is inconsistent with it. It must remain within the limits of the enabling Act.
2. Ultra vires the Constitution: If the delegated legislation violates any provision of the Constitution (e.g., fundamental rights), it is declared void.
3. Abuse of power / mala fide: Rules framed dishonestly, with an improper motive, or for a purpose not authorised by the Act are struck down.
4. Procedural irregularity: If the parent Act prescribes a procedure (e.g., consultation with a committee, publication, prior approval) and it is not followed, the delegated legislation becomes invalid.
5. Unreasonableness: Arbitrary, oppressive or manifestly unreasonable rules may be declared invalid.
6. Sub-delegation beyond authority: If the delegate further delegates the power where the parent Act does not permit it, the courts hold it invalid.
7. Exclusion of judicial review: Even where the Act seeks to oust the jurisdiction of courts, the courts retain the power to examine the legality of the delegated legislation.

Conclusion: Delegated legislation is a practical necessity of the modern welfare state, but it must remain within the limits set by the parent Act and the Constitution. The judiciary acts as the guardian of these limits through judicial review.

Doctrine of Separation of Powers and Check and Balance

1. Doctrine of Separation of Powers

The doctrine of separation of powers means the division of the powers of government into three distinct branches — legislature, executive and judiciary — each placed in separate organs, each performing its own function, and no organ exercising the powers of another. It was propounded by the French political thinker Montesquieu in his book The Spirit of Laws (1748). He argued that liberty is safe only when legislative, executive and judicial powers are not united in the same person or body. If the legislature and executive are combined, there is danger of tyranny; if the judiciary is joined with either, there is no liberty at all. The doctrine therefore rests on three elements: separation of personnel, separation of functions and separation of powers.

2. Doctrine of Check and Balance

Separation of powers alone cannot prevent one organ from becoming supreme. Hence the doctrine of check and balance is added to it. Under this doctrine, each organ is given certain powers by which it can check and control the excesses of the other organs, and each organ is also subject to checks by the others. For example, the legislature makes law but the executive can veto it; the executive runs administration but the legislature can pass a no-confidence motion; the judiciary interprets law and can declare a law or executive act unconstitutional. Thus the three organs remain independent yet interdependent, and no organ becomes absolute. This system is also called the system of checks and balances.

3. Implementation in Nepal

A. Constitutional basis. The Constitution of Nepal, 2072 (2015) does not use the phrase "separation of powers" expressly, but it adopts the doctrine in substance. Article 76 provides for the formation of the Council of Ministers from the legislature; Article 83 vests legislative power in the Federal Parliament; Article 121 vests executive power in the Council of Ministers; and Article 126 vests judicial power in the courts. The three organs are thus separately constituted.

B. Legislature. The Federal Parliament (House of Representatives and National Assembly) makes laws, approves the budget, ratifies treaties, and can pass a vote of no confidence against the Prime Minister (Article 100). It also approves the appointment of the Chief Justice and constitutional office bearers.

C. Executive. The President is the head of state and the Prime Minister is the head of government. The Council of Ministers exercises executive power. The President appoints the Chief Justice, the Chief of the Army Staff, ambassadors and constitutional office bearers on the recommendation of the Constitutional Council or the Council of Ministers. The President may grant pardon, pardon and remission of sentence (Article 276).

D. Judiciary. The Supreme Court is the highest court. It has the power of judicial review (Articles 133 and 137) to declare any law inconsistent with the Constitution void, and to issue writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto. This is the strongest check on the legislature and executive.

E. Checks between organs.

• Executive on legislature: The President may return a bill for reconsideration (Article 113); the President may dissolve the House of Representatives on the recommendation of the Prime Minister in case of a hung parliament (Article 76).
• Legislature on executive: No-confidence motion, budget approval, parliamentary committees, impeachment of the President or Vice-President (Article 101), and ratification of treaties.
• Judiciary on both: Judicial review, writ jurisdiction, and contempt power.
• Executive on judiciary: Appointment and removal of judges through the Judicial Council, and the power of pardon.

F. Independent constitutional bodies. The Constitutional Council, Judicial Council, Public Service Commission, Election Commission, Commission for the Investigation of Abuse of Authority (CIAA), National Human Rights Commission and Auditor General act as additional checks on the three organs. The CIAA, for instance, can investigate corruption by ministers and officials.

G. Practice. In practice, Nepal follows a parliamentary system in which the executive is drawn from and responsible to the legislature, so the separation between legislature and executive is not strict. The judiciary, however, has remained comparatively independent and has exercised judicial review in several notable cases. The doctrine is thus implemented in a modified form, suited to the parliamentary system.

Conclusion

The doctrine of separation of powers and check and balance is the foundation of constitutional government. Nepal has adopted it in substance through Articles 76, 121, 126, 133 and 137 of the Constitution of Nepal, 2072, along with independent constitutional bodies. Though the parliamentary system softens the separation between legislature and executive, the system of checks and balances keeps the three organs within their limits and protects the liberty of the people.

Short Notes (Any Three)

a) Writs

A writ is a formal written order issued by a court (usually a constitutional court or High Court) commanding a person or authority to do or refrain from doing a certain act. Writs are the principal means of enforcing fundamental rights and keeping public authorities within the limits of law.

The Constitution of Nepal provides for five types of writs under Article 133 (issued by the Supreme Court) and Article 144 (issued by High Courts):

1. Habeas Corpus — "to have the body." Issued against illegal detention, ordering the detaining authority to produce the person before the court and release him if the detention is unlawful. It protects personal liberty.
2. Mandamus — "we command." Issued to a public authority or official directing it to perform a legal duty it has failed or refused to perform. It cannot be issued against a private person or against the President.
3. Certiorari — "to be certified." Issued to a lower court, tribunal or quasi-judicial body to quash its decision given without jurisdiction or in violation of natural justice.
4. Prohibition — Issued to a lower court or tribunal to stop it from proceeding further in a case beyond its jurisdiction or in violation of the rules of natural justice. It is preventive in nature.
5. Quo Warranto — "by what authority." Issued to inquire into the legality of a person's claim to a public office, requiring him to show by what authority he holds it.

Thus, writs are effective legal remedies that protect citizens against the arbitrary exercise of power by the state and its organs.

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b) Ombudsman

The Ombudsman is an independent official appointed to investigate complaints of maladministration, injustice or abuse of authority by government officials against citizens. The institution originated in Sweden (1809) and has since spread to many countries.

In Nepal, the ombudsman-type institution is the National Human Rights Commission (NHRC), which investigates complaints of human rights violations and maladministration, while the anti-corruption ombudsman function is performed by the Commission for the Investigation of Abuse of Authority (CIAA). The concept is that of a watchdog of the citizen against the bureaucracy.

Key features:

• Appointed by the legislature/head of state for a fixed term.
• Independent of the executive; cannot be removed arbitrarily.
• Receives complaints from citizens free of cost.
• Investigates, recommends corrective action, and reports to the legislature.
• Cannot usually punish; its power is to inquire, recommend and publicise.

Importance: It provides a cheap, quick and accessible remedy; checks bureaucratic high-handedness; protects the weak and illiterate who cannot afford litigation; and strengthens accountability and the rule of law. Its main limitations are that its recommendations are not binding and it cannot act on its own in many cases without a complaint.

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c) Audi Alteram Partem

Audi alteram partem is a Latin maxim meaning "hear the other side" or "no one should be condemned unheard." It is one of the two fundamental principles of natural justice, the other being nemo judex in causa sua (no one should be a judge in his own cause).

Meaning and scope: Before any authority—judicial, quasi-judicial or administrative—passes an order affecting a person's rights, interests or liabilities, that person must be given a fair opportunity to present his case. This includes:

1. Notice — adequate and reasonable notice of the charges or proceedings.
2. Hearing — a fair opportunity to be heard, orally or in writing.
3. Evidence — the right to know the evidence against him and to rebut it.
4. Reasoned decision — the order should be supported by reasons.
5. Impartiality — the hearing must be free from bias.

Importance: It ensures fairness, prevents arbitrary and one-sided decisions, safeguards the right to be heard, and increases the acceptability of administrative decisions. In Nepal, this principle is reflected in the right to justice and fair hearing under Article 20 of the Constitution and in various statutes governing tribunals and quasi-judicial bodies. A decision passed in violation of this principle can be quashed by writ of certiorari.

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d) Quasi-Judicial Body

A quasi-judicial body is an authority—usually an administrative or executive organ—that performs functions which are partly administrative and partly judicial. It decides disputes or issues orders affecting the rights of parties, but it is not a regular court of law.

Features:

1. Created by statute — its powers, jurisdiction and procedure are defined by law.
2. Judicial-like procedure — it follows the principles of natural justice (notice, hearing, reasoned decision).
3. Not bound by strict court procedure — it is not bound by the Evidence Act or the Code of Civil Procedure in the same rigid manner as courts.
4. Decision binding — its decisions are binding on the parties unless set aside by a higher court.
5. Appeal/review — its decisions are generally subject to appeal or judicial review by courts.
6. Examples in Nepal — Revenue Tribunal, Public Service Commission, Labour Court, Commission for the Investigation of Abuse of Authority (in certain matters), and various departmental committees.

Importance: Quasi-judicial bodies reduce the burden on regular courts, provide speedy and specialised justice, and allow experts to decide technical matters. Their main weakness is that they may lack full independence and may be influenced by the executive.

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e) Role of CIAA in Corruption Control

The Commission for the Investigation of Abuse of Authority (CIAA) is a constitutional anti-corruption body of Nepal, established under Article 239 of the Constitution of Nepal. It is one of the four constitutional bodies meant to ensure good governance.

Composition: A Chief Commissioner and four other Commissioners, appointed by the President on the recommendation of the Constitutional Council.

Powers and functions:

1. Investigation — Inquires into and investigates cases of abuse of authority, corruption, improper conduct or irregularity by any public official.
2. Prosecution — Files cases in the Special Court against persons found involved in corruption.
3. Preventive role — Recommends reforms in administrative procedures to reduce chances of corruption.
4. Advisory role — Gives advice and suggestions to the Government of Nepal and other bodies on measures to control corruption.
5. Monitoring — Keeps watch over public offices, tenders, contracts and service delivery.
6. Public awareness — Conducts programmes to build public awareness against corruption.

Importance: The CIAA helps maintain integrity in public administration, deters officials from misusing authority, protects public property, and promotes accountability and transparency. Its effectiveness, however, depends on political will, adequate resources and the independence of its officials. Delays in investigation and political interference are its main challenges.