UNIT 1INTRODUCTION TO ADMINISTRATIVE LAWContents1.0 Learning Goals and Distinctive Features 1.1 Introduction 1.2 Definition and Scope of Administrative Law 1.3 The Evolution of Administrative Law 1.3.1 In the World 1.3.1.1 Common Law Legal System A. Australia B. The United States of America. C. England 1.3.1.2 Civil Law Legal System 1.3.2 In Ethiopia 1.4 Administrative Law and Other Legal Disciplines 1.4.1 Administrative Law Compared with Constitutional Law 1.4.2 Administrative Law Compared with Labor Law 1.5 Sources of Administrative Law 1.6 Let us Sum up 1.7 Answers to Revision Questions 1.8 Model Examination Questions 1.9 Lexicon 1.10 Selected References and Source Materials 1.0 Learning Goals and Distinctive Features The major aim of this unit is to define the concept of Administrative Law and then to abridge its scope.

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Thus, after reading this unit you should be able to: discuss the assortment of meanings given for the term administrative law by different scholars; identify the scope of administrative law; know the sources of administrative law, differentiate administrative law from other similar laws, and know the origin and historical development of the concept of the subject in the world in general and in Ethiopia in particular.

1.1 IntroductionDear students! Welcome to the course Administrative Law. Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. As a body of law, administrative law deals with the decision-making of administrative units of government (e.g., tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as police law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport. Administrative law expanded greatly during the twentieth century, as legislative bodies world-wide created more government agencies to regulate the increasingly complex social, economic and political spheres of human interaction. As stated above, the main objective of this unit is to define the concept Administrative Law and to outline its scope. In doing so, the unit first examines definitions that are coined for the term by different writers such as: Dr. F.J. Port, Sir Ivor Jennings, Professor Dicey and K.C. Davis; and then it tries to compare the essence of the subject with other similar disciplines with a view to elucidate the concept. To broaden the horizon of students, the origin and historical development of the concept in the common law and civil law legal systems and in Ethiopia is also treated under this unit. Administrative Law has a lot to share with other laws. Therefore, in this unit an attempt is made to discuss about the similarities and differences between Administrative Law and other laws such as: Labor Law and Constitutional Law.

1.2 Definition and Scope of Administrative Law2

Just like for other legal terminologies, there is no universally applicable definition for the term administrative law. According to Massey, the reason seems to be that in almost every country irrespective of its political philosophy, the administrative process has increased so tremendously that today we are living not in its shade but shadow. Therefore, it is impossible to attempt any precise definition of administrative law, which can cover the entire range of administrative process. Perhaps this was the reason why Dr. F.J Port, who published the first book bearing the title "Administrative Law" in England in 1929, did not venture to define the term. He simply attempted to describe administrative law as follows: Administrative Law is made up of all those legal rules-either formally expressed by statutes or implied in the prerogative - which have as their ultimate object the fulfillment of public law. It touches, first the legislature, in that the formally expressed rules are usually laid down by that body; it touches the judiciary, in that (a) there are rules which govern the judicial action that may be brought by or against administrative persons, (b) administrative bodies are sometimes permitted to exercise judicial powers thirdly, it is of course essentially concerned with the practical application of the law. Even this attempt to describe administrative law rather than to define it is not without difficulty because it touches all branches of government that are either administrative or quasiadministrative. For instance, in our country it is these administrative laws that set up and define the powers and duties of administrative agencies, like the Civil Aviation Authority, the National Bank of Ethiopia and government owned Higher Education Institutions. Sometimes it even touches private organizations. We can take Regulations issued by the Council of Ministers to regulate the issuing, renewing and revoking of licenses and those Directives of the Ministry of Finance and Economic Cooperation regulating individual suppliers of raw materials, stationary items, etc to the government as cases in point. Furthermore, administrative law is made up not only of legislative and executive rules and a large body of precedents but also of functional formulations, for every exercise of discretion forms a rule for future action.

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Subsequent to Dr. Port, different other writers also tried to define the term. Of these, English writers were the prominent. These early English writers did not differentiate between

administrative law and constitutional law and therefore, the definition they attempted was too broad and general. Sir Ivor Jennings defined administrative law as the law relating to administration. It determines the organization, powers and duties of administrative authorities. This formulation does not differentiate between administrative and constitutional law. It lays entire emphasis on the organization, power and duties to the exclusion of the manner of their exercise. It also leaves many aspects of administrative law untouched, especially the control mechanism. Dicey, like Jennings, belongs to that group of English writers who did not recognize the independent existence of administrative law. According to Diceys formulation Administrative Law relates to that portion of a nation's legal system, which determines the legal status, and liabilities of all state officials; secondly, defines the rights and liabilities of private individuals in their dealings with public officials; and thirdly, specifies the procedure by which those rights and liabilities are enforced. Dicey was very much concerned with the French "droit administratiff (administrative Law) that existed as a separate branch of law applied by special courts not by the ordinary courts of the land. Therefore, his definition was mainly concerned on judicial remedies against state officials. Therefore, this definition excludes the study of every other aspect of administrative law. When we see the American approach, it is significantly different from that of the early English writers approach in that it recognized administrative law as an independent branch of the legal discipline. According to K.C. Davis, Administrative Law is a law that concerns the powers and procedure of administrative agencies, including especially the law governing judicial review of administrative action. Within his formulation, Davis includes the study of administrative rulemaking and rule-adjudication but excludes rule application which according to him belongs to the domain of public administration. However, even this classification by Davis cannot be considered complete because he excludes from his control mechanism the control exercised by the legislature, higher administrative authorities, institutions like Ombudsman, Human Rights

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Commission, and the mass media representing public opinion and also the vast area of administrative action which is neither quasi-legislative nor quasi-adjudicative. David Foulks was the other author from this same legal system to define the term administrative law. According to him, Administrative law is that branch of law relating to public It is concerned with the legal forms and constitutional status of publ i c

administration.

authorities; with their powers and duties and with the procedures followed in exercising them; with their legal relationships with one another, with the public and with their employees; and with the wide range of institutions, both internal and external to themselves, which seek, in varied ways, to control their activities. The undesirable diversity in definition of the term 'administrative law' may be related to two reasons. The first is due to the indescribable and un comprehendible nature of the term and; the second is, due to the fact that administrative law specialists try to lay more emphasis on any one particular aspect of the whole administrative process, which according to their evaluation deserves singular attention. However, taking the legal system of Ethiopia in to consideration and for the purpose of this material, we may define administrative law as: A branch of public law which deals with the organization, powers and duties of administrative and quasi-administrative agencies and prescribes principles and rules by which an official action is reached and reviewed in relation to individual rights and freedoms. An analysis of this definition gives us the following elements that are cornerstones in delineating the nature and scope of the subject administrative law. 1. It is a law. However, in the strict sense of the term (according to positivists understanding of the term law) administrative laws may not be considered as laws like commercial laws, contract laws or penal laws, which are duly legislated by the legislature. It is a law in the realists sense of the term as it includes Regulations and Directives, which are issued by the executive branch of the government and sometimes decisions of administrative tribunals.

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It also includes those sets of rules which may not be termed 'Law' in the true sense of the term such as administrative circulars, policy statements, memoranda and resolutions, internal rules and regulations of administrative agencies, etc. Besides, it also includes 'higher law' within its study, like the principles of natural justice. 2. Administrative Law is a branch of public law. In contradistinction with private law, which deals with the relationships of individuals interse administrative law is public law. Therefore, administrative law primarily deals with the relationship of individuals with organized government power and the relationship of government agencies amongst themselves. Thus, those branches of laws, which by definition are private laws, do not form part and parcel of administrative law. 3. Administrative Law deals with the organization and powers of administrative and quasiadministrative agencies. Modern government carries on a great variety of functions, it regulates private conduct; it exact taxes; it provides goods and services to the society; it disburses money and goods to pensioners, welfare clients, and other recipients; and it directly provides such commonly used goods and services as national defense, police, fire protection, high ways and so on. These functions or powers and duties are conferred/ imposed on the Administrative agencies by legislation. These legislation do not merely define powers and duties of agencies, they also provide the hierarchical set-up or organizational structure of the same. Thus, legislation that organize and provide the powers and duties of administrative agencies come under the classification of administrative law. 4. Administrative law includes the study of higher principles. Administrative law includes the study of the existing principles like, the principles of hearing, due process and faire trial, and also of the development of certain new principles which administrative agencies must follow while exercising their powers in relation to individuals, i.e., the principles of natural justice, reasonableness and fairness.

5. Administrative law primarily concerns itself with the official action, which may i. Rule-making action;

be:

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ii. Decision making or adjudicating action; or iii. Rule-application (implementation) action. In addition to these main actions, the actions incidental to the main action are also covered within its study. Such incidental actions may be investigatory, supervisory, advisory,

declaratory, and prosecutory. 6. Administrative law studies about administrative procedures. One of the main thrusts of the study of administrative law is on the procedure by which the official action is reached. If the means or procedure is not trust worthy, the end cannot be just. There is a bewildering variety in the procedure, which the administrative agencies follow in reaching an action. Such procedure may be laid down: i. In the legislation itself under which the administrative agency has been created. This is what we see in most of our legislation that create administrative agencies; or ii. In the separate procedure code which every administrative agency is bound to follow. This is just like the Administrative procedure Act of USA, 1946 and Tribunals and Inquiries Act of England, 1958. Unfortunately, we do not have this procedure code yet. However, there are hopes that our parliament will enact this kind of Administrative legislation in the near future as the draft administrative procedure proclamation is finalized and submitted to the House by the Ethiopian Justice and Legal System Research Institute. 7. Administrative law study agency control mechanisms. Administrative law also includes within its study the control mechanism by which the administrative agencies are kept within bounds and made effective in the service of the individuals. This control mechanism is technically called the 'review process'. An administrative action may be controlled by internal or external controlling mechanisms. Internal controlling mechanisms are designed within the agency itself by making lower organs accountable to the higher ones so that the higher organs could check the activities of the lower organs. External controls may take different forms including: i. control by the judiciary; courts by exercising their judicial power may review acts of the executive and give reliefs like injunctions, and prohibitions. other remedies available for 7

individuals aggrieved by acts of the executive also include: habeas corpus, mandamus, and certiorari. ii. control by higher administrative authorities outside of the agency concerned. for instance, control by the council of ministers. iii. control by the legislature. in our country the legislature, being the supreme organ of the government, has constitutional power and also responsibility of checking and controlling the executive branch of the government. iv. control by institutions of Ombudsman, Human Right Commission, and other investigative agencies such as the Federal Ethics and Anti Corruption Commission is another form of external control. With these objectives and aims in view Administrative law thus becomes the key instrument, which conduces to the stability and growth of the society and the maintenance of a just social order and welfare of mankind by reconciling power with liberty. It also seeks to channelise administrative powers to achieve the basic aim of any civilized society, that is, growth with liberty.

1.3 The Evolution of Administrative LawAdministrative Law is not one of the traditionally recognized parts of law, such as the criminal law, family law and property law. The development of this branch of law as a distinct subject matter and as an academic discipline is relatively new, dating from the 18th century. Though a young discipline, its development and origin all over the world is not similar. In some countries, it has its origin in legislation and has grown gradually by the enactment, application, and construction of specific legislation in regard to particular agencies; whereas, in some other countries, it originates from customs and usages as recognized by courts of law in the administration of justice.

Thus, for purposes of comparison, we shall try to see the origin and development of administrative law in: a. the common law legal system, 8

b. the civil law legal system, and c. Ethiopia.

1.3.1 In the worldThe two most known cases in point of this legal system are the United States of America and England. Thus, we shall briefly examine the origin and development of administrative law in these two countries.

1.3.1.1 In Common law legal systemGenerally 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 with legislation or other common law doctrines that establish standards for proper rulemaking. Administrative law may also apply to review of decisions of so-called quasi-public bodies, such as non-profit corporations, disciplinary boards, and other decision-making bodies that affect the legal rights of 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 (United States) or fundamental justice (Canada). Judicial review of administrative decision, it must be noted, is different from an appeal. When sitting in review of a decision, the Court will only look at the method in which the decision was arrived at, whereas in appeal the correctness of the decision itself will be under question. This difference is vital in appreciating administrative law in common law countries. The scope of judicial review may be limited to certain questions of fairness, or whether the administrative action is ultra vires. In terms of ultra vires actions in the broad sense, a reviewing court may set aside an administrative decision if it is patently unreasonable (under Canadian law), Wednesbury unreasonable (under British law), or arbitrary and capricious (under U.S. Administrative Procedure Act and New York State law). Administrative law, as9

laid down by the Supreme Court of India, has also recognized two more grounds of judicial review which were recognized but not applied by English Courts viz. legitimate expectation and proportionality.The powers to review administrative decisions are usually established by statute, but were originally developed from the royal prerogative writs of English law, such as the writ of mandamus and the writ of certiorari. In certain Common Law jurisdictions, such as India or Pakistan, the power to pass such writs is a constitutionally guaranteed power. This power is seen as fundamental to the power of judicial review and an aspect of the independent judiciary. A. Australia

The constitutional framework and development of administrative law in Australia was highly influenced by legal developments in the United Kingdom and United States. At the end of the 19th century, The British constitutional theorist A. V. Dicey argued that there should be no separate system of administrative law such as the droit administratif which existed in France. As a result, Australian administrative law before World War II developed in an unplanned way. The present administrative law is largely a result of growing concern about control of bureaucratic decisions in the 1960s. In response a set of committees were established in the early 1970s, whose recommendations constituted the basis for what became known as the "New Administrative Law". The most important of these, the Kerr Report, recommended the establishment of a general administrative tribunal which could review administrative decisions on the merits, codification and procedural reform of the system of judicial review, and the creation of an office of Ombudsman. These proposals were put into practice with the passing of the Administrative Decisions (Judicial Review) Act 1977; the Administrative Appeals Tribunal Act 1975; the Freedom of Information Act 1982; and the Ombudsman Act 1976.B. United States of America. The development of administrative law in the United States of America as a subject is relatively new, dating form the 1880's. On the other hand, however, the establishment by government of

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offices and agencies, which were authorized to make rules, make decisions, and take actions goes back to the earliest years of the republic.

In the 1700's Federal officers were authorized to estimate duties on imports, to adjudicate veterans' pensions, to entertain patent requests, to administer Indian affairs and so on; the socalled independent agencies also begun to appear in 1887 with the advent of the interstate commerce commission. A continuing increase of these took place, and by the mid-1970 there were more than sixty independent agencies, together with several hundred others within various departments.

Historically, the development of administrative law as a conscious phenomenon in the United States is usually said to have progressed through four overlapping eras: The first is an initial period of polishing the constitutional aspects and dealing especially with separation of powers and delegation; the second was a period in which questions emphasizing judicial review were paramount; while the third was an era in which procedures for formal adjudication and rule making were developed; and the fourth a final period now contemporary and projected in which matters having to do with informal rule making, discretion, etc. were and are of special concern. Now lets see these periods turn by turn. 1. Constitutional Period: in the earlier years of an awareness of administrative law in the United States, the emphasis was up on its constitutional status, especially on matters relevant to the American system of separation of powers and up on delegation of powers and its legitimacy. It has been a fundamental element of separation of powers doctrine as developed by Locke and Montesquieu and refined by Madison that governmental intrusions on private liberty be authorized by general rules formulated by a politically responsible group of officials separate from the officials responsible for executing the rules (separation of powers). Separation of powers is necessary to ensure uniformity and impartiality, in the application of sanctions. If the executing officials also had the power to decide when sanctions would be

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visited, enforcement policies might reflect the private advantage or prejudice of those officials; they would also be unpredictable. By contrast, requiring that the imposition of sanctions be governed by general rules fixed in advance by a distinct, politically responsible group of officials promises several safeguards. Because the rules are general and formulated by officials who may find it difficult to estimate how their own interests will be affected by the disposition of particular cases. There is also a greater likelihood that the policies adopted will reflect a broad social judgment about desirable policy than the officials own private advantage. This likelihood is enhanced if the official in question must seek reelection.

Moreover, the requirement that policies be general renders them more predictable, thus facilitating private planning and security. The principle of separation of lawmaking and law applying powers also reduces the effective power which government can exert against citizens and reduces the possibility that the entire power of government could be taken over by any one faction. However, these traditional principles and practices have been threatened by the creation of administrative agencies, which combine lawmaking, adjudicative, and executive functions. Agencies have been given the authority to promulgate legislative type rules and simultaneously to apply these rules in given cases. They have been invested with the power to investigate and prosecute, and with the power to decide individual controversies. Responsibility for resolving disputes between private parties has been shifted from courts to agencies. Thus, during this period that covered up to the 1930s the basic question addressed was how to reconcile functions and also existence of administrative agencies with their (the American) constitutional principle of separation of powers. 2. Judicial Review. This is the second period, which some how overlap with the first period. The period emphasized the role of judicial review. Judicial review within the context of American administrative law has to do with the right of the courts to review agency actions in order to determine their conformity to law. It also includes

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the right of courts to judge the constitutionality of statutes, but it is the former meaning, which is most characteristic in administrative law. The early American history shows us that there was something of a presumption of unreviewability, i.e., the courts tended to decline to review the legality of much administrative action on the grounds that it would merely lead to "mischief. But all this gradually changed and during this period, especially beginning from the 1930's, and today the situation appears to be quite the opposite, namely that there is a presupposition of reviewability. 3. Adjudication and Rule Making. In this third period procedures for formal adjudication and rule making, that are still applicable, were developed. To mention some; in 1940 Congress passed the Walter-Logan bill, which would have imposed standardized procedural requirements on Federal Agencies and mandated a broad availability and scope for judicial review of agency decisions. In 1946 after long and tiresome discussions the ever-cited Federal Administrative Procedure Act (APAP) was enacted. 4. Control of Discretion. The fourth period, postulated for the future, is that of emphasis on

how to control agency discretion in those areas where it is thought to be excessive, and what to do about protection in those areas where safeguards are week. C. England The British administrative law has influenced all nations, which were once a part of the British Empire, and some of its features have also spilled over into other traditions as well. Thus currently, the British administrative law is the prototype of one of the main systems of administrative law in the Common Law Legal System. The most notable characteristics of the British administrative law are at least three in number: 1. The emphasis on the regular courts as the ultimate arbiters of administrative legality; 2. A strong and comprehensive emphasis on the protection of the individual; and 3. All of these within the orbit of the overriding principle of parliamentary supremacy.

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These characteristic features, however, are not inventions of an overnight. They are results of a long process that begun in the 13thC. Before the reign of Edward I, in England, no lord could be sued in the court, which he held to try the cases of his tenants, so the king at the apex of the Feudal Pyramid was not sue able. Subjects with claims against the king in the 13thC presented them informally to him, whereupon he might refer them to his courts. With the reign of Edward I, however, a standard procedure of presenting claims against the king by petition of right was introduced, and after the 14thC no important procedural changes were made on this procedure. Of course the subject had no right of action. If the petitioner had a claim, which would have vested in him a legal right against a subject, than the king, through the Curia Regis or sometimes through particular officers, would adjudicate. A subject prejudiced by a royal refusal to consider a petition was remediless. A petition of right was available for all proprietary actions, in the wide sense in which that term was used in the medieval legal system, so that it was used not merely for recovery of land, but also on a claim for damages in respect of an interference with an easement. It also lay for the determination of a claim to a corody and for the recovery of chattels. It is usually said that the petition of right did not lie for torts. This was because of the principle that said 'the king can do no wrong.' Although it seems to rest on an insecure historical foundation, the judges by formal legalistic reasoning have made this principle the basis for the royal immunities in tort. From the 15thc

onwards, petition of right fell in to virtual disuse largely because of its

complicated procedure. Thus, there is no trace of a petition of right from 1605 until the 19th century.

However, the nineteenth century witnessed a remarkable revival in the use of the petition of right. During this period, there was a large increase in government contracts, disputes over which contractors sought to settle by petition of right. Not surprisingly, the rules of procedure, which had been unaltered for 400 years, were not suited to the 19thC conditions. Complaints by

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contractors led to the passing of the petitions of Right Act, 1860, which introduced a simpler procedure by way of alternative to that of the fourteenth century. But, even, under this act the crown had certain advantages not possessed by the citizen.

The first and the most is that a petition of right was not available for tort against the crown. The others were procedural advantages relating to discovery, venue and the like.

Besides, prerogatives were also given to the crown whenever its interests conflicted with those of subjects. In addition, a petition of right could be filed only if the Attorney - General granted permission, which in most of the time was less likely.

Protests both from the Bench and in the press against these immunities particularly that from proceedings in tort, have been frequent in the century. Thus, in 1921, the Lord Chancellor appointed committee, which in 1927 presented a draft bill proposing to abolish the petition of right and make the crown freely sue able in tort. Therefore, for the first time legislation not legal fiction was resorted to as a means of amelioration. However, it was in 1947 that the Crown was made freely sue able by a legislation of the House of Lords. Thus, at present the great merit of the English Legal system is the prevalence of rule of law; which allow actions to be brought in the civil courts against an officer responsible in the same manner as against any other citizen.

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In civil law legal system

The best representative model for the study of administrative jurisprudence in the Civil Law Legal system is that of the French Droit Administratiff. Outside the common Law legal system it is rather the standard and indeed it has been widely imitated. Thus, under this section we shall try to see the historical development of the French Droit Administratiff as a case in point of the historical development of the concept in the civil law legal system.

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Just like the rest of Europe, until the nineteenth century, France denied any state responsibility. But officials were not immune as there were rules, which made them personally liable for damages based on injuries caused by them. This was the first or the beginning in public law of actions for damages based on injuries caused by administrative acts. This, however, had a negative impact as talented men might be dissuaded from entering the public service by the threat of exposure to a series of civil actions. Over-caution and lack of initiative in the

administration might be encouraged. France sought a solution, which would take account of these factors and not yet leave the citizen remediless. The first method sought as a solution was to allow private citizens to sue officials with the consent of the head of the administration (Conseil dEtat). By the constitution of 1799,

government agents were immune from being sued in respect of acts done in the discharge of their official duties except with the permission of the Conseil d'Etat. However, as the Conseil d'Etet was under the strict control of the governmental, it was only rarely and with difficulty that permission to sue was used to be obtained. The modern Conseil d'Etat was created by the constitution of 1799. The main aim of the institution was to resolve difficulties that might occur in the course of the administration. However, in due course of time it started exercising judicial powers in matters involving the administration. In the beginning it was not an independent court but an appendage of the executive. Its main task being to advise the minister with whom the complaint was to be lodged. In fact the minister was the judge, and the Conseil d'Etat administered only advisory justice. It did not have public sessions and it had no power to pronounce judgments. It merely represented the government's point of view.

However, in 1872, its formal power to give judgments was established. During this time, Napoleon III curtailing judicial domination over the executive, under the pretext of separation of powers principle, made the Conseil d'Etat, a body of lawyers trained in administration to exercise exclusive jurisdiction over administrative acts. And the Cour de cassation was to retain its

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private jurisdiction over the acts of individual, while any disputed question of jurisdiction being settled by the Tribunal des conflicts.

A year latter, on February 8, 1973, the famous Blanco case confirmed that actions in damages against the central administration were within the exclusive jurisdiction of the administrative courts. The rule soon extended to suits against the departments and communes. It laid down, among other things, the principle that questions of administrative liability would be within the jurisdiction of administrative courts and that the liability was subject to special rules different from those of civil law.

Therefore, beginning from 1889, it started receiving direct complaints from the citizens and not through ministers. This situation created a dual court structure in France, i.e., the ordinary courts, and the administrative courts (Conseil d'Etet).

Droit Administratiff (administrative law) in France does not represent principles and rules laid down by parliament; it rather consists of rules that are developed by the judges of the administrative courts.

Droit Aministratiff, therefore, includes three series of rules: 1. rules dealing with administrative authorities and officials - appointment, dismissal, status, salary and duties. 2. rules dealing with the operation of public services to meet the needs of citizens. these services may be operated either wholly by the public officials or under their supervision or they may assist the private agencies to provide public utility services. 3. rules dealing with administrative adjudication - if any injury is done to a private citizen by the administration, the matter would be decided by the administrative courts. Conseil d'Etat is the highest administrative court. This system of administrative adjudication developed in France due to historical reasons in order to avoid encroachment by the courts on the powers of the administrative authorities and an intrusion of the judges into the business of the administration.

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In case of conflicts between the ordinary courts and the administrative courts regarding jurisdiction the matter was decided by the Tribunal des conflicts. This tribunal consists of an equal number of ordinary and administrative judges and is presided over by the minister of justice.

In France, there is no code of Droit Administratiff like the code civil. However, the Conseil d' Etat has developed and elaborated the doctrines on its own. Sometimes these new doctrines created by the conseil d' Etat have been adopted in the civil code through parliament.

In general, from the above discussion, the following characteristics of the Droit Administratiff in France may be noted. 1. Matters concerning state and administrative litigation are decided by the administrative courts and not by the ordinary courts of the land. 2. In deciding matters concerning state and administrative litigation, special rules as developed by the administrative courts are applied. 3. Conflicts of jurisdiction between ordinary courts and administrative courts are decided by the agency known as Tribunal des conflicts. 4. It protects government officials from the control of the ordinary courts. Conseil dEtat, which is the supreme administrative court, is not a priori invention but is a product of historical process with far-off roots. It is not merely an adjudicatory body but is also a consultative body.

1.3.2 EthiopiaTo know about the historical development of administrative law in Ethiopia one must see the historical development of administrative agencies, because, the cornerstone of any study of the administrative process requires an understanding of the origin, development and characteristics of administrative agencies. Thus, in the subsequent discussions we shall try to see the development of administrative agencies in Ethiopia.

The outstanding feature of administrative agencies in the history of Ethiopian government is their non-existence. For instance, before a century back there were no regularly established royal 18

councils, no clear-cut system of local government or taxation, no established national army or police force, and no civil service system. This, however, is not to say that within some three thousand years of nearly uninterrupted monarchical rule there were no institutionalized extensions of the central authority, but simply that what extensions there were never developed into a relatively permanent and formal organ of the government.

According to some writers, the reasons for the failure to develop a formal and permanent administration may be summed up in the following four points. 1. Nature of the Monarchy. The monarch in Ethiopia was rooted in a different soil from that of the other countries. It was a very ancient, change resistant and autocratic monarch with mysterious divine king ship power. Thus, administrative institutions and ideas relating to administration remained static for an immense period of time. 2. The difficulties of delegation. According to Perham "the Ethiopians have their own special attitude in this matter of delegation of responsibility. They have profound reverence for their great men, above all for their monarch, and to them it is a diminution of that greatness for subordinate to take decisions and perform actions, which seem to belong to their superior. The superior on his side believes that in delegating he is lowering his status in the eyes of his subordinates." Because of those believes the development of formal and permanent administrative agencies was negatively affected. 3. Nature of the country. The third obstacle to the development of centralized institutions was the physical nature of the country, which its high mountains and deep-cut valleys, and the heavy rains which for considerable periods of the year made already difficult communications impossible to all but the most resolute travelers. 4. Lack of a fixed capital. Because of lack of fixed capital there couldn't exist a firm and progressive administration in Ethiopia.

In addition to the above, many other factors had a less obvious influence in stemming the development of administrative agencies. For example, the lack of sufficiently educated

executive personnel, of fixed financial resources, and communication to the external world each discouraged administrative development. 19

It was in the mid 19th century, during the reign of Emperor Tewodros, that a series of reforms including: abolition of the slave trade, suppression of the custom of vendetta, regulation of the power and lands of the church, and the civil service system were introduced to Ethiopia for the first time. Foreseeing the need of a decentralized system of administration to implement these reforms, he sought to turn the local chiefs into salaried officials responsible to the imperial power. Without demeaning his position, he accomplished a distribution of authority, which commanded the respect, and allegiance of the inhabitants of the Empire, including that of the strongest rivals.

A territorial police force was instituted under the auspices of preserving the territorial integrity of the provinces, but it also served to ensure observance and application of imperial proclamations. He also established a regular army to the same end and filled lower-level administrative posts with imperial as well as provincial personnel. But these developments had limitations. For instance, it created dissatisfactions on the feudal chiefs and as well on the church. Besides there was no strong social or institutional base upon which to build: national unity; there was no historic bureaucracy; no national administration had survived the division of the country, urbanization was practically unknown (except, perhaps, in a most rudimentary form); and finally, there did not even exist a well-developed class of feudal nobility. However, despite all these limitations, Emperor Tewodros has to be credited as the opener of the modern era and consequently, as the inventor of modern administration in Ethiopia. Despite such shortcomings in the development of modern administration, there have long been some traditional administrative personnel in the government. Early historians have identified four primary heads of departments under the emperor: 1) Yettor Abegaz (commander in-chief of the Army); 2) Afe Negus (judge on all appeals in the name of the emperor save those involving the death sentence);

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3) Tsehafe Tezaz (keeper of the Great Seal of the Emperor and writer of all imperial orders); and 4) Ligaba (communicator of all imperial orders, Deputy Yettor Abegaz, and Sargent - at- arms to the emperor). Further, the emperor enjoyed the consultation of two Betewodeds who frequently absorbed much of the burden of running the government. However, when we speak of the development of an administrative framework, we are concerned with a more formal decentralization of the authorities governing the affairs of state - the distribution of the power to regulate private sector. In this context, we begin the development with Emperor Tewodros. Next to Emperor Tewodros, Emperor Yohannes IV succeeded the throne. Emperor Yohannes time was hampered by a series of wars with the Egyptians, Mahdists, and Europeans; and his efforts at unification were concerned more with religious uniformity than with political transformation. Thus, during his time, in connection with the establishment and transformation of administrative agencies, no significant developments were recorded. The next period was that of Emperor Menelik II's. Menelik took up the standard dropped at the clause of Tewodros' reign and finally succeeded in firmly planting it in all provinces of the Empire. His methodology was markedly similar to that of Tewodros. The police powers remained loyal only to him. The power of the local chieftains was broken first by force and then they were enlisted in the governmental framework but always subject to the will of the central authority. By this time communications throughout the nation were greatly improved and Menelik was able to hold the country together, establishing a fixed capital from which to rule. He also pushed forward new programs in the areas of public health, education, internal and external commerce, and public transportation. Furthermore, increased communications with the outside world, created a pressure for reform, which flowed from the people to the government. As the economic and social priorities came to fruition, they postulated the need to create organs to sustain their growth.

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Thus, in 1907, Menelik created the first ministerial frame work in Ethiopia, consisting of the following ministries: 1) Ministry of Justice; Agriculture and Foreign Affairs; (2) Ministry of Interior, (3) Ministry of

(4) Ministry of Finance;

(5) Ministry of Agriculture and (8) Ministry of pen, and (9)

Industry; (6) Ministry of public works; Ministry of palace. officials.

(7) Ministry of war;

To some extent, the process was simply one of giving new titles to old

The Afe-Negus became Minister of Justice and the Tsehafe Tezaz became the

Ministry of the Pen. Further, the ministers still bore the status of personal servants to the crown. However during this time, though autonomy was hardly realized and though delegation of usable power existed more on paper than in reality, a permanent administrative body was established as an integral organ of the central government.

The Administrative Institutions remained much the same as they were during the reign of Menelik through that of Empress Zewditu and the early reign Emperor Haile Sellassie. However, in 1931, Haile Sellassie promulgated a major change in the theory of government in Ethiopia by enacting the country's first constitution. This constitution recognized the existence of the executive branch of the government. Under Article 11 of the constitution it was provided that the Emperor would lay down the organization and the regulation of all administrative departments." And as pursuant to this power the emperor established a number of ministries and other administrative agencies that were directly accountable to him. As per this constitution power was centralized in the executive branch of the government, which was headed by the emperor. This branch was also the most powerful organ as compared to the other two organs.

In 1943, Orders No 1and No 2 were issued to regulate and decentralize the power of the executive. Pursuant to these orders a title of Prime Minister, for the first time in our history, and ten other ministries were established. By these orders the emperor had terminated his role as the head of each and every agency, and no longer could the agencies leave every tough decision and all responsibility to him. Being held accountable to the Prime Minister who was in turn held accountable to the supreme authority for their actions, agency chairmen were made autonomous. By this the real form of delegation of power begun. In addition, shortly after the creation of the

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office of the prime minister many agencies that played a great role in the development of the country were formed.

As with the first constitution, the revised constitution of 1955 seemed to reflect the times rather than change them. For instance, the emperor maintained a high degree of supervisory power over the executive branch through Article 27 and chapter IV of this constitution.

He was empowered to determine the internal organization of the executive branch (including ministers, departments and agencies) and had the power to appoint, transfer and dismiss all executive personnel including the prime minister. Further, all ministers and the council of ministers were made responsible to the emperor. In fact, as per Article 73 of the constitution, they were also made responsible to answer when called for questioning before the parliament. Though not clearly worded, it would seem that this provision was made for the eventual holding of the executive branch responsible to the people as represented in the parliament. The parliament was also empowered to initiate prosecutions against the ministers for crimes arising from their official activities; however, it lacks the legal power to compel removal of an executive official. In 1966, order No. 44 was issued to amend order No. 1 of 1943 as amended. By this order the power of the prime minister was retreated again as the head of all the ministers. And it was made directly responsible to the emperor and the state for ensuring the execution of the duties, the programs and the laws concerning the ministries. This order also governed the appointment procedures of those officials above the rank of Assistant Minister, general powers and duties of the ministries, and hierarchical structure of the administration.

In 1962, Order No. 23 of 1962 established the most relevant government institution for the development of formal administration, i.e., the Imperial Ethiopian Central Personnel Agency (CPA). The agency was given the powers to classify jobs, to recruit public servants, to establish pay scales and to issue regulations necessary for the establishment of homogeneous public service.

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Until the coming in to power of the Provisional Military Government, in 1974, various administrative agencies were established by the Emperor. Most of these agencies bearing the names ministry, commission, authority or agency were made accountable to the Prime Minister. On top of the commissions, authorities, and agencies there were twenty-one ministries, such were: The Ministry of National Community Development and Social Affairs, The Ministry of Public Health, The Ministry of Land Reform and Administration, The Ministry of Communications, The Ministry of Information and Tourism, The Ministry of Mines, The Ministry of Public Works, The Ministry of Education and Fine Arts, The Ministry of Commerce and Industry, The Ministry of National Defense, The Ministry of Interior, The Ministry of Agriculture, The Ministry of Foreign Affairs, The Ministry of Finance, The Ministry of the Imperial Court, The Ministry of Pen, The Ministry of Justice, The Ministry of Planning and Development, The Ministry of Posts, Telegraphs, and Telephones, The Ministry of Stores and Supplies, and The Ministry of Pensions.

After the coming in to power of the provisional Military Government, until the enactment of the 1987 Constitution the changes made on the administration were not as such significant as compared to that of the changes made on the legislature. In 1975, pursuant to proclamation No. 19 of 1975 The Ministry of National Resources Development was added to the already existing twenty-one ministries.

The People's Democratic Republic of Ethiopia Constitution of 1987 under Article 89(1) gave all administrative powers to the council of Ministers. The council was composed of the Prime Minister, Deputy Prime Ministers, Ministers and other members including Heads of the Secretariat of State Committees, Authorities and Commissioners. In the cabinet that was created following the constitution, there were twenty ministries, seven commissions, six authorities, two state committees, and two institutes. Pursuant to proclamation No. 8 of 1987, the highest executive and administrative organ of the state i.e., the Council of Ministers, was made accountable to the National Shengo and between sessions of the Shengo, to the Council of State and to the President of the Republic.

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In turn, as per Article 12 of the same proclamation each Minister, Head of the Secretariat of a State Committee, Commissioner or other Head of government organ was made accountable to the Council of Ministers as regards the execution of responsibilities, programs and laws concerning the given ministry, commission or government organ. This was the hierarchy and structure of the administrative branch of the government until a Federal form of government in 1991 replaced the system.

In 1991 a major change occurred in the government structure of Ethiopia. The then unitary state was changed into a Federal form of government. Pursuant to proclamation No 7/1991 the state was divided into one Central (Federal) and twelve Regional governments. As per the same proclamation these newly established governments were given the power to establish their own administration composed of the Regional council, entrusted with the power of legislating laws; the Regional Judiciary, entrusted with the power of interpreting laws; and the Regional Executive, entrusted with the power of implementing laws. This Federal Government structure was also maintained by the 1995 constitution. Thus today, we do have administrative agencies at the Federal and Regional levels. Pursuant to proclamation 256/2001, at the Federal level there are eighteen ministries, seven commissions, thirteen authorities and nine agencies. Regional governments also have different bureaus destined to implement laws.

1.4

Administrative Law Compared With Other Laws

Administrative law compared with other laws has some similarities and differences. Under this section an attempt is made to see the similarities and distinctions of administrative law with other most related laws, viz., constitutional law and labor law.

1.4.1 Administrative law compared with constitutional lawAdministrative Law and Constitutional law have some similarities. In the first place, both try to define and control the functions of government. Administrative law defines the powers and

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duties of the executive in general and of each administrative agency in particular. Similarly, the constitution defines the powers and duties of the three branches of the government. The other similarity is that, both tries to ensure rule of law by ensuring that every one in the nation, be it an individual or government institution, is under the law and also by making sure that everything is performed in line with the law. In addition, both are public laws. Thus, as a law belonging to the same category, they share other detailed similarities, which are peculiar to public law domains. However, unlike these similarities, there are also differences between these laws. The first difference is in their scope. Constitutional law deals with the structure of the government and mostly with the three branches, namely legislature, executive and judiciary and their relations inter se and the relationship with the individuals. But administrative law does not concern with all the three branches. It has no concern with parliament or judiciary. It is intimately concerned with the powers of the administration. It is specialized in one branch. The other is the difference of power. Constitutional law is the fundamental law of a country. It is the law that governs the state. It represents the will of the ultimate sovereign of the people. Thus, it is supreme, whereas, administrative law consisting of parliamentary legislation, subordinate legislation of the executive and decisions of the courts is inferior in hierarchy. Administrative laws are considered as active laws that are related to the day-to-day life activity of the people, while constitutional law is considered as a passive one. In general, despite the differences stated above, in most countries administrative law is considered as the replica of the constitution in ensuring legality.

1.4.2 Administrative law compared with labor lawJust like in the case of Administrative Law vs. Constitutional Law, there are some similarities and differences between Administrative Law and Labor Law. The first similarity they share is that both are public laws. Thus, as a public law both governs the relationship between two or more unequal parties, usually the relationship of persons with government where government

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acts in its regulatory (administrative) capacity. Administrative Law on top of establishing and defining hierarchical structures of administrative agencies also determines the terms of relationships that should exist between persons and the agencies by providing powers and duties to the latter. For instance, by conferring the power of issuing, renewing and revoking licenses to agencies administrative law create relationships between persons and the government as the latter represented by agencies. These relationships are not created on equal footings of the parties as the agencies deal with the persons in their capacity of regulating behaviors of the latter. Similarly, labor law deals with the relationships that exist among employer, the employee and the government. Government involves itself in this relationship because it has a stake in the industrial peace. To ensure industrial peace government usually controls the employer-employee relationships. Most of the time this control is effected through laws, mainly by Labor law. The other similarity between the two is that both laws deal with the recruitment, selection, promotion, transfer, demotion, and retirement procedures and formalities of employees though in different contexts. The civil service laws which are part and parcel of the Administrative Law govern how administrative agencies staff their offices and how they can promote, demote, transfer or retire their staffs. The same also holds true in case of Labour law as it governs these matters in connection with undertakings other than administrative agencies. The main difference between these laws is the scope of their application. Administrative Laws are applicable only on administrative agencies. They govern the relationship between the agencies and their employees, and the relationship between agencies and other persons that are subject to the regulation of the former. On the other hand, Labor Laws are applicable on undertakings which most of the time are instituted to perform profit-making activities than regulating private conduct of persons.

1.5 Sources of Administrative LawIn some countries administrative laws are found in codified forms just as we do have codified civil, commercial and penal codes. In these countries, these administrative law codes are the

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principal sources of administrative laws.

However, in some other countries, like ours,

administrative laws are found in different pieces of legislation cited here and there. Generally speaking the sources of administrative law can be broadly classified in to three groups. The first source is the Constitution. As a supreme law of a land constitution usually establishes the different organs of the government and defines their powers, duties and hierarchical structure. From these different organs of the government instituted by the constitution, the executive or the administration is the first. Constitutions do not only establish the executive branch of the government, they also provide the basic principles of administration that the branch has to follow in conducting its detailed activities. These basic principles of the constitution are guidelines and basic sources of administrative law. The other sources of administrative law are legislations. These legislations may be primary or secondary legislation. Primary legislations are the products of the legislative branch of the government or in other words the parliament. In our country proclamations are primary

legislation. These legislations are the main sources of administrative law. They are the main sources because most of the administrative agencies are established by these primary legislations; and most of the powers and duties of the agencies are determined by these legislations.

In order to implement the rules and principles embodied in the primary legislation, the executive branch of the government has issued secondary legislations. The executive branch derives this power of issuing secondary legislations from primary legislations and from the provisions of the constitution by way of delegation; that is why most of the time they are referred as delegated legislation. In our country delegated or secondary legislations vary from regulations of the Council of Ministers to Directives and Internal Rules and Regulations of the Administrative Agencies. All these constitute part and parcel of the legal regime that govern the administration. Thus, it forms one source of administrative law.

The third source of administrative law is precedent or case law. The case laws are evolved through interpretation of statutes by the courts and in the exercise by the courts of their type of

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prerogative power. In some countries, especially in countries that follow the common law legal system, decisions rendered by courts are binding on subsequent similar cases. Thus, a decision rendered by a court in connection with administrative agencies and administrative matters is considered as a law for the disposition of subsequent similar cases. Therefore, decisions of courts or case laws are the other sources of administrative law. But in our country, courts are not duty bound to follow earlier decisions of the same or higher courts on the same issue. Thus, no precedent or case law is recognized. Consequently, this third source is not considered as a source of administrative law though it is one of the main sources of administrative law in some other countries.

Review Questions1. What are the main elements of administrative law according to some legal scholars? ___________________________________________________________________________ ___________________________________________________________________________ __________________________________________________________________ 2. What are the differences between English writers and American writers in defining the term administrative law? ___________________________________________________________________________ ___________________________________________________________________________ __________________________________________________________________ 3. Explain why administrative law is considered as a branch of public law. ___________________________________________________________________________ ___________________________________________________________________________ __________________________________________________________________ 4. Which one of the following is not the concern of administrative law? A. Rule-making action of agencies B. Decision making or adjudicating action of agencies C. Rule-application (implementation) action of agencies D. All E. None. 5. Discuss the major similarities and differences between Administrative law and Constitutional law.

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____________________________________________________________________________ ____________________________________________________________________________ ________________________________________________________________

1.6 Let Us Sum UpThere is no universally applicable definition for the term administrative law. Different writers defined it in various ways. This diversity in the definition of the term may be related to two reasons. The first is due to the indescribable and incomprehensible nature of the term; and the second is, due to the fact that administrative law specialists try to lay more emphasis on any one particular aspect of the whole administrative process, which according to their evaluation deserves singular attention.

However, taking the legal system of Ethiopia into consideration and, for the purpose of this material the term Administrative Law may be defined as: A branch of public law which deals with the organization, powers and duties of administrative and quasi-administrative agencies and prescribes principles and rules by which an official action is reached and reviewed in relation to individual rights and freedoms.

The main elements of this definition are: 1. Administrative Law is a law. And as a law it dictates behavior, it is laid down by a political sovereign, and its enforcement is backed by sanctions. 2. Administrative Law is a branch of public law. Thus, it primarily deals with the relationship between two or more unequal parties, usually the relationship of persons with government where government acts in its regulatory (administrative) capacity. It also governs the relation ship of government agencies amongst themselves. 3. Administrative law determines the powers, duties and structural organization of administrative and quasi-administrative agencies. 4. It also deals with the controlling mechanisms by which administrative agencies could be kept within bounds and made effective in the service of individuals.

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This branch of law is not one of those traditionally recognized parts of law, such as criminal law, family law, and property law. Its development as a distinct subject matter and as an academic discipline is relatively new, dating from the 18th century. This origin and development of the subject, however, is not similar all over the world. In some countries it arose from legislations, while in some others it originated from customs and usages as recognized by courts of law. In the United States of America the historical development of administrative law is said to have progressed through four overlapping eras. The first is constitutional period. During this period that covered up to the 1930's the basic question addressed was how to reconcile functions and also existence of administrative agencies with their (the American) constitutional principle of separation of powers. The second period is a judicial review period in which questions

emphasizing judicial review were paramount. During the third period, i.e., adjudication and rule making period, procedures for formal adjudication and rule making were developed. Such includes the Federal Administrative Procedure Act of 1946. The fourth period, a final period now contemporary and postulated for the future, emphasizes on how to control agency discretions in those areas where it is thought to be excessive.

In Britain the development of administrative law is believed to begun from Magna Charta. In the early times England, no lord could be sued in the court, which he held to try the cases of his tenants. The same was also true for the king who was at the apex of the feudal pyramid. However, during the reign of Edward I a standard procedure of presenting claims against the king and the lords by petition of right was introduced. This right was available only for proprietary actions. The petition of right did not lie for torts. This was because of the principle that said. "The king can do no wrong." No important procedural changes were made on this petition of right after the 14th century. Thus, it fell into virtual disuse largely because of its complicated procedure. Consequently, there was no trace of petition of right from 1605 until the 19th century.

Due to a large increase in government contracts, the 19th century, however, witnessed a remarkable revival in the use of a petition of right. These developments in turn caused the

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enactment of a Bill in 1948 that abolished the petition of right and made the crown suable without restrictions. In general, the most notable characteristics of the British administrative law are at least three in number: (1) the emphasis on the regular courts as the ultimate arbiters of administrative legality; (2) a strong and comprehensive emphasis on the protection of individual rights; and (3) all of this within the overriding principle of parliamentary sovereignty. In France, just like the other European countries, there was no state responsibility until the 19th century. Since there was no distinction between government and the rulers, no action could be brought even against the latter too. Even the legislation enacted in 1789 and 1790 to make government officials liable for damages based on injuries caused by them were full of restrictions. The first restriction is that to bring an action against an official, the head of the administration, i.e., the Conseil d'Etat must gave permission. And the other restriction is that the Conseil d'Etat was under the strict control of the government, so it was less likely for it to grant permissions of suits against government officials; even if it grants permission, as per their constitution, government officials were made immune from being asked for injuries that they caused while performing their official functions. In 1870 this administrative guarantee was abolished and officials were made suable without the consent of the government. Certain administrative acts, however, were remained Immune from court control. Such were diplomatic acts and matters of war. During these formative days the ordinary courts used to try administrative suits. However, after 1873 under the pretext of separation of powers principle the power of trying cases that involve the administration was taken from the courts and was given to Conseil d'Etat. By this, dual court structure system consisting of the ordinary courts and the administrative courts, i.e., Conseil d'Etat - that try cases involving the administration, was formed. Because of this dual court structure system, in France, there is no judicial review concept and no appeal to the ordinary courts from the decisions of the administrative courts.

Some writers criticized this dual court structure system while others support it. Those who supported it argued by saying that it offer positive guarantee to the citizen against the arbitrary or

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unjust action of the administration and affords guarantees to the administration against undue interference by ordinary courts. They also argued that the system was advantageous for it promoted specialization and speedy trial. On the other hand those who stood against the system criticized it by saying that it endangered rule of law and separation of powers principles, as one organ became executive and judiciary.

When we come to the historical development of administrative law and agencies in Ethiopia, the outstanding feature is their non-existence. This is not to say that within some 3000 years uninterrupted monarchical rule that there were no institutionalized extension of the central authority, but simply that what extensions there were never developed into a relatively permanent and formal organ of the government.

Emperor Tewodros took the credit for trying to institute formal administrative agencies in Ethiopia for the first time. The reforms that he introduced include: abolition of slave trade, suppression of the custom of vendetta, regulation of the power and lands of the church, and appointment of salaried officials. However, his attempt was a fiasco because of the opposition of the anti-development forces, the opposition of the church, the opposition of regional rulers (warlords) and the geographical isolation of the regions.

The basic principles in the framework of public administration, however, were born and were to survive to be revitalized by Emperor Menelik. In the period between Tewodros and Menelik, Emperor Yohannes IV was hampered by series of wars with the Egyptians, Mahdists, and Europeans; and his efforts at unification were concerned more with religious uniformity than with political transformation.

In 1908, Menelik created the first Ministerial framework in Ethiopia, consisting of nine ministries. In 1931 Emperor Hailesellassie promulgated the first constitution. And this has changed the theory of government in Ethiopia. Pursuant to this constitution, the Emperor was empowered to organize and regulate all administrative departments. Following the constitution

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several legislations with respect to the administration were issued.

The creation of an

administrative position, i.e., Prime Minister, is just a case in point result of these legislations.

As with the first constitution the revised constitution of 1955 seemed to reflect the times rather than change them. For instance, the Emperor maintained a high degree of supervisory power over the executive. He was also empowered to determine the internal organization of the executive and had the power to appoint, transfer and dismiss all executive personnel including the prime minister. In line with this constitution, until the coming into power of the Provisional Military Government, the Emperor established various administrative agencies.

After the enactment of the third constitution, in 1987, the administration was created composed of twenty ministries, seven commissions, six authorities, two state committees, and two institutes. This executive body headed by the Council of Ministers was accountable to the National Shengo and between sessions of the shengo, to the council of state and to the President of the Republic.

In 1991 a major change has occurred in the government structure of Ethiopia. The state was changed into a federal government. And this change was reaffirmed by the fourth constitution, of 1995. Thus, currently we do have administrative agencies both at Federal and Regional levels.

The sources of Administrative Law vary from country to country. In some countries these laws are found in codified forms, while in some other countries they are found in different pieces of legislations scattered here and there. In general, however, the known sources of administrative law are: the Constitution, Primary or Secondary Legislations, and Precedent or Case Law.

1.7 Answers to Review Questions1. Please refer pages 3-5. 2. Please refer pages 3-5.

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3. Please refer pages 5 4. E 5. Please refer pages 28 & 29

1.8 Model Examination Questions1. The sources of administrative law are _________________, __________________ and ____________________ 2. Explain the following concepts in not less than ten lines for each. A. Dual court structure system ____________________________________________________________________ ______________________________________________________________ B. The principle of Petition of Rights ____________________________________________________________________ ______________________________________________________________ C. Constitutional law as a source of administrative law. ____________________________________________________________________ ______________________________________________________________ 3. Compare and contrast the origin and development of administrative law in Ethiopia with that of the countries of the common law legal system such as England and U.S.A. in not less than fifteen lines. _______________________________________________________________________

1.9 Lexicon1. Administrative Law: Body of law created by administrative agencies or by the legislature in the form of rules, regulations, orders and decisions to carry out regulatory powers and duties of such agencies. 2. Conseil d' Etat: - Council of state, it is a body of government in France which has the power of trying cases that involve the administration. 3. Bill: - A formal and emphatic legislative assertion and declaration of popular rights and liberties usually promulgated upon a

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change of government. 4. Case Law: - The aggregate of reported cases as forming a body of jurisprudence, or the law of a particular subject as evidenced or formed by the adjudged cases, in distinction to legislation and other sources of law.

1.10 Selected References and Source Materials1. Chouldhuri, A. D. Ray Fundamentals of Administrative Law (Allahabad, Central Law Agency, 1985) 2. Massey I.P. Administrative Law ( Lucknow, Eastern Book Company, 1998) 3. Cooper F.E, State Administrative Law Vol. I and II (Michigan, B.M Comp. Inc., 1965) 5. Breyer G.S. and Stewart B., Administrative Law and Regulatory Policy (Boston, Little Brown & Co., 1979) 5. Freedoman C.E, The Conseil D'etat in Modern Franc (N.S, Colombia University, 1961) 6. Milton C., The Background of Administrative Law (N.Y, 1948) 7. Wade H.W.R, Administrative Law 5th ed. (Oxford, Oxford University Press, 1982) 8. Abera Jembere, Materials on Administrative Law (Faculty of Law, AAU, 1985 9. Girma Wolde Selassie,Materials On Administrative Law (Faculty of Law, AAU, 1966) 10. Davis K.C, Administrative Law Text (Boston, Little Brown & Co., 1959)

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UNIT 2ADMINISTRATIVE AGENCIES

Contents2.0 Learning Goals and Distinctive Features 2.1 Introduction 2.2 The Meaning of Administrative Agencies 2.3 Powers of Administrative Agencies 2.3.1 Nature and Scope of their Powers 2.3.2 Administrative Powers 2.3.3 Legislative Powers 2.3.3.1 Legislative Procedure 2.3.3.2 Form and Nature of Delegated Legislation

2.3.3.3 Reasons for Delegated Legislation2.3.4 Adjudicatory Power 2.3.4.1 Reasons for the Creation of Administrative

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Tribunals 2.3.4.2 Kinds of Administrative Tribunals 2.3.4.3 Safeguards Accorded to Persons against Unjust use of Agency's Adjudicatory Power. 2.4 Let us Sum-up 2.5 Answers to Review Questions 2.6 Model Examination Questions 2.7 Lexicon 2.8 Selected References

2.0 Learning Goals and Distinctive FeaturesThe main objective of this unit is to define the term Administrative Agency and then to discuss the main powers and duties of administrative agencies. Thus, after reading this unit you must be able to know: the various definitions coined for the term administrative agency by different legal documents and scholars, the standards for the classification of institutions in to administrative or non administrative agencies, the three different powers of administrative agencies, and how administrative agencies are controlled in exercising their powers.

2.1 IntroductionDear student! As it is outlined above the main objective of this unit is to define the term Administrative Agency and then to discuss their powers and duties. In doing so, the unit first examines definitions that are coined for the term by different legal documents and scholars. Then, the unit makes an attempt to discuss the three basic powers of administrative agencies, viz., the power to execute laws, the power to make laws and the power to interpret laws.

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Safeguards accorded to citizens against unjust use of these powers by administrative agencies are also discussed in this unit.

2.2 The Meaning of Administrative AgenciesJust as any other legal terminology, there are various definitions coined for the term administrative agency. Most of these definitions are formulated either by statutes or by writings of scholars. These definitions coined by legal documents and writings of scholars to define the term are purpose oriented.

Thus, they expound the phrase either by enlisting the name of the institutions that they consider are administrative agencies or by excluding some specifically mentioned institutions from the general category of the executive branch of the government.

For our purpose, however, we shall try to see some of these definitions and then we will develop our own definition for the term at the end of this section.

The most frequently used definition for the phrase is that of the definition of the United State's Federal Administrative Procedure Act. According to this act, "administrative agency" means "each authority of the government of the United States other than congress, the courts... This definition equates the concept agency with the executive branch; under it, every governmental organ out side of the legislature and the courts is an administrative agency.

However, from the administrative lawyers perspective this definition is too inclusive. Because for them administrative agencies, which are the subject matters of administrative law, are only those administrative authorities that affect private rights and obligations. Thus, according to

them, those organs of the executive branch whose powers are turned against the outside world than against private persons or property inside the nation are not considered as the subject matters of administrative law. Hence, according to these administrative lawyers, they are not

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considered as administrative agencies. Such includes: organs that are engaged in conducting military defense, and foreign affairs.

This analysis of the administrative lawyers leaves us mainly with two principal kinds of governmental organs that usually affect rights and obligation of private persons. These are regulatory agencies and agencies vested with the power of dispensing benefits.

Administrative agencies at present day are vested with the authority: to prescribe generally what shall or shall not be done in a given situation (just as legislatures do); to determine whether the law has been violated in particular cases and to proceed against the violators (just as prosecutors and courts do); to admit people to privileges not otherwise open to members of the public; and even to impose fines and render what amount to money judgments. Agencies vested with these powers are usually called "regulatory agencies" because their activities impinge up on private rights and regulate the manner in which those rights may be exercised. To administrative lawyers these are the best-known type of administrative agencies. In our country, their prototype includes: the Telecommunication Regulatory Agency; the Electric Light and Power Regulation Agency; the National Bank; the Civil Service Commission; the Authorities, Commissions and Ministries.

The other groups of agencies are those, which are vested with the authority to give out benefits for promoting social and economic welfare, such as pensions, disability and welfare grants, and government insurance. Whenever they make decisions in connection with their function, these social welfare agencies affect the rights of private persons either positively or negatively. Hence, they form part and parcel of the administrative agencies that are the subject matters of administrative law.

In the USA there are also another group of administrative agencies that are established independently of the executive. Congress creates these institutions in order to counter the threatened increase in civil service power. These independent regulatory agencies have covered major economic fields and have included the Inter state Commerce Commission, and the Federal

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Communication Commission. This policy of creating independent agencies has laid congress open to the charge that it has created a headless fourth branch of government.

In our country too, there are these kinds of agencies which do not form part of the executive, the legislature or the judiciary, but that are independent regulatory agencies, such as: the Office of the Federal Auditor General, the Electoral Board, and the Office of the Ombudsman.

The other definition coined for the term was by H.C. Black. According to him, administrative agency is "a governmental body charged with administering and implementing particular legislation... He further stated that "the term "agency" includes any department, independent establishment, commission, administration, authority, board, or bureau of the US or any corporation in the US has a priority interest unless the context shows that such term was intended to be used in a more limited sense." Similarly, but in a broader context the term was defined by G.S. Gulick. According to him, "the term administrative agency stands to describe an agency exercising some significant combination of executive, legislative and judicial powers."

The other definition of the term that shall not be left un discussed under this section is that of the definition of the Draft Administrative Procedure proclamation of ours. The Draft Proclamation defined the term administrative agency under Art 2(1) as: ".... any ministry, commission, public authorities of the Federal Democratic Republic of Ethiopia, including the Addis Ababa and Dire Dawa cities Administrations, competent to render administrative decisions and exercising regulatory or supervisory functions. The term shall include the agency head, and one or more members of the agency head or agency employees or other persons directly or indirectly purporting to act on behalf or under the authority of the agency head."

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From the above definitions the draft administrative procedure proclamation's definition is somehow different. It begins to define the term by enumerating those institutions that it

considers are administrative agencies and then it goes on to set up standards that determine whether a certain institution is an administrative agency or not. These standards tell us that in Ethiopia for a certain institution to be considered as an administrative agency, as pursuant to its enabling legislation, it has to be capable of rendering administrative decisions and its functions must be regulatory or supervisory. Unlike the preceding definitions, in this definition, the term was made to refer not only to an institution, but also to the head(s) and employees of the institution that is considered an administrative agency.

By taking in to account the above definitions, one can infer the following inherent features of administrative agencies. The first is that all administrative agencies are governmental institutions. For an institution to be considered as an administrative agency it must be part of the government. Most of the time these agencies are parts of the executive branch, while in some circumstances they may be created as an independent establishment outside the direct control or supervision of the executive branch. But they hardly form part of the legislative or judiciary branches of the government. Second, administrative agencies are created to administer or implement particular legislation. The aim of creating such institutions by the legislature or head of the executive is to regulate certain fields of activities through them. Therefore, these institutions are regulatory by their nature. For instance, the Ministry of Trade and Industry was created to regulate activities related to trade and industry.

Third, administrative agencies assume and exercise the three basic functions of a government, namely, legislating, implementing and interpreting laws. Though the main function of administrative agencies is to implement laws, almost all of them are empowered to enact subordinate legislation, in their specific fields of activity, and to adjudicate cases that are related to their main function.

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Generally, based on the preceding discussions and within the context of our legal system, we may define the term administrative agency as: An authority of government other than a court or legislative body with power to regulate and supervise behavior, to make law, to interpret and implement (apply) law in various ways.

2.3 Powers of Administrative Agencies

2.3.1 Nature and scope of their powersAdministrative agencies are basically known for their power of executing laws (administration). This power entitles them to manage or supervise the execution or carrying out of public affairs as distinguished from policy or rule making. In addition to this, the possession of legislative and judicial powers is also another hall mark of administrative agencies. Because of their judicial power administrative agencies can render decisions to settle disputes or contested cases by interpreting relevant laws. And because of their legislative power, agencies can issue rules and regulations that have the force of law. In theory these latter two powers should not have been assumed and exercised by administrative agencies. But because of various pragmatic reasons administrative agencies have assumed these powers and affect the rights of private parties through either of these adjudication or rule making processes. As a result, administrative agencies typically have legislative, judicial, and executive powers concentrated in them.

2.3.2 Administrative powersAdministrative powers and duties are the main powers and duties of administrative agencies. Administrative agencies are established for the main purpose of carrying out administrative functions. Unlike their judicial and legislative powers, which they acquired by delegation, administrative powers are inherent to them.

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Administrative powers are the residuary powers of the agencies, which are neither legislative nor judicial. These powers are concerned with the treatment of particular situations and are most of the time devoid of generality. No procedural obligations of collecting evidences and weighting arguments are imposed on agencies whenever they exercise these powers. Decisions are made solely on the grounds of subjective satisfactions, policy considerations and expediency.

Administrative powers and duties assumed and exercised by administrative agencies vary from agency to agency. For instance in our country, what is provided, as an administrative power for the Ministry of Justice is different from that of the Ministry of Education. This is because of the different nature of the two agencies. As per Proclamation No. 256/2001, the administrative powers or functions of the Ministry of Justice include: to represent the federal government in criminal cases falling under the jurisdiction of the federal courts; to instruct for investigation where it believes that a crime, falling under the jurisdiction of the federal courts, has been committed; order the discontinuance of an investigation or instruct for further investigation on good cause; to study the causes of and the methods for prevention of crimes; to see to it that witnesses to a criminal case are accorded protection,