Administrative Law Essay Sample

Amongst the several categories of law, public law is one. Public law is the branch of law regulating the relationship between the citizen and the State.

Administrative law is a public law category in the sense that it deals with the intercourse between governmental institutions on the one hand and private individuals or corporations on the other. Because of the involvement of the modern State in activities hitherto the exclusive domain of non-governmental actors, there has been the need for governments to establish many agencies, that is, ministries, parastatals, bureaus, departments, etc for the actualization and implementation of governmental projects and programmes.

Since the traditional governmental structure only envisages the three arms of government – legislature, executive and the judiciary – the creation of the agencies has had to contend with relevance and constitutionality. 10

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Administrative law is all about administration of state affairs by the afore-mentioned agencies. More specifically, administrative law, inter alia: (a) Relates to the power and procedures of administrative agencies and the remedies available to persons who may be aggrieved by the conduct of these agencies; (b)

Deals with the transfer of power from legislatures to agencies; the exercise of such power by the agencies, and the judicial review of administrative action; (c) Concerns the organization, functions, powers or authority of governmental agencies; and (d) Regulates the relationship amongst administrative agencies, and the relationship between their employees and the public.

2.0 OBJECTIVES At the end of this Unit, you will be able to: • • • • 3.0 3.1 Define or describe administrative law; Analyze the nature and character of administrative law; Explain the relationship between administrators and citizens; Demonstrate the history and development of administrative law. MAIN CONTENT Historical Background

By virtue of Nigeria’s colonial relationship with the United Kingdom (UK), it is a common law jurisdiction. One of the laws Nigeria received and adopted into its legal system is British administrative law. Therefore, we can hardly do much justice to the discourse on the nature of administrative law without making reference, howbeit brief, to administrative law in the UK. For a long time and until late 20th Century, the British legal system was perceived to lack administrative law.

This was despite the fact that governmental powers were already placed in the hands of authorities other than those wielding legislative, executive and judicial powers. According to Prof. Wade, “as far back as 1888, Maitland had percipiently remarked that about half the cases in the Queen’s Bench Reports had to do with the rules of administrative law. But the rules were not studied. Instead, lawyers were brought up in the fashionable fallacy that administrative law 11

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I was repugnant to the British constitution.” 1 The perception of administrative law’s repugnancy to the British constitution is attributed to Prof. A.V. Dicey’s misreading of the country’s legal system. Dicey did a comparative study of English legal system and that of continental law countries.

In the UK, ordinary courts enforce both public and private law without any discrimination on the basis, for example, of the status of the parties to the dispute or suit. However, in France – a civil law jurisdiction – administrative law (droit administratif) is administered by special courts while private matters are handled by ordinary courts. Because the French administrative law peculiarity was not reflected in the UK system, Dicey declared the latter as lacking administrative law.

In other words, he claimed that there was no administrative law in the UK. In his The Law of the Constitution (1885), Dicey said that administrative law was foreign to the British constitution and that it was incompatible with the rule of law, with the common law and constitutional liberty. Of course, his judgmental conclusion was erroneous.

The fact is that administrative law existed long before the term ‘administrative law’ ever came into common usage, the problem being that the UK and the US failed to recognize it because English writers did not classify it. 2 The verdict of Dicey was so influential that, as late as 1963, Lord Reid in Ridge v. Baldwin 3 said that “we do not have a developed system of administrative law.” This statement should, however, be contrasted with that of Lord Denning who in Breen v. Amalgamated Engineering Union 4 asserted the contrary about a decade later.

Note that in the US, the decisive first step in the development of modern administrative law was the growth of administrative regulation of private economic activity in the latter half of the 19th Century. For example, the limitations of State regulation of interstate railroad operations led to the establishment in 1887 of the first great federal regulatory agency, the Interstate Commerce Commission. 5 3.2 Administrative Law in Nigeria

H.W.R. Wade, Administrative Law 10-11 (Oxford: Clarendon Press, 3rd Edition, 1971). 2 Kenneth Culp Davis 6 (Minnesota: West Publishing Co., 2nd Edition, 1975). 3 [1964] AC 40. 4 [1971] 2 QB 175 at 189. 5 Stephen G. Breyer & Richard B. Stewart, Administrative Law and Regulatory Policy 23 (Toronto: Little, Brown and Company,1979). 12

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In its reception of English laws, Nigeria inherited English jurisprudence of administrative law into its domestic legal system at independence in 1960.Desirous of fast-tracking the socio-economic and political development of various societal sectors, the national leadership of the newly independent Nigeria adopted State-centred economy by which the country assumed responsibilities previously performed by private persons and corporations.

The by-product of this was the necessity of creating myriad governmental agencies such as the railway corporations, marketing boards, etc. Over and above the capacity of civilian governments, successive military regimes had a field day churning out series of agencies or tribunals. Such capacity was understandably fuelled by the fact that the modus operandi of military regimes is to act with dispatch.

At present, there are hundreds of governmental agencies charged with different functions including the delivery of goods and services, and the enforcement of certain rules and regulations. The principal institution driving the machinery of administrative law is the executive branch of government.

Thus, S.5 of the Constitution of the Federal Republic of Nigeria (CFRN) 1999, provides that the executive power is vested in the president or governor and may be exercised by him directly or through the Vice-President or Governor or Deputy Governor, ministers or commissioners and other officers of the public service.

Such powers extend to the execution and maintenance of the CFRN and all laws made by the National Assembly and all matters with respect to which the National Assembly is competent to make laws. It is the process of executing this power that makes up the administrative arm of government and administrative law.

Therefore, the study of administrative law is the study of how the president carries out his enormous duties through the ministries, public corporations and other government agencies in accordance with the provisions of the constitution, thus maintaining the rule of law which is the president’s primary function.

Also, this study is important because it is through these agencies that citizens have their closest contact with government. 3.3 Common Features of Administrative Law

No matter the origin or the ramification of administrative law, there are certain features it possesses which you should bear in mind. They are as follows:

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(a) Close to 60 years ago, administrative law was defined or described only in terms of the powers exercisable by governmental agents and the remedies available to victims of the exercise of such powers. However, because of the increasing vesting of powers on these governmental agents and the concomitant abuses of such powers, there has been the need to include the process or procedure for carrying out administrative acts. An adjunct to this is the fact that administrative law focuses more on issues of remedies and procedures than on substantive law.

(b) Administrative law in continental (civil law) countries like France, Italy, Germany, Japan, etc, is wider that that of common law jurisdictions. In the former, separate courts handle public and private matters.

Thus, in France, for example, special courts are constituted to determine administrative cases. On the other hand, common law jurisdictions have one system of court that handles cases derived from administrative (public) law and private law. In other words, ordinary courts, not special administrative courts, determine cases regarding the validity of governmental action.

The advantage that the common law jurisdictional system has over the other is that citizens have access to highly esteemed courts that can give effective or appropriate remedies. Also, the subjection of both governmental and private conducts to the same ordinary courts suggests the equality of all before the law. But the drawback is that judges handling administrative matters may not be versed enough in the area as to efficiently dispose of matters brought before them. 6 (c)

Administrative process is closer to the grassroots than the legislative or judicial process. It is true that in enacting laws for the country, the National Assembly impacts on every natural and artificial person within the territory of Nigeria. But such laws lay down general principles or policy which can only be made ‘real’ at the level of implementation – the turf of governmental agents. In the case of judicial authorities, most citizens are not directly affected by the decisions of the courts. In fact, there is overwhelming number of citizens who in their life time never have cause to invoke judicial process or to have it invoked against them.

However, when it comes to the activities of governmental agents, everybody is in one way or another affected on a daily basis. In other words, the exercise of powers by governmental agents frequently impact on the people because the latter are the closest governmental authorities to the people in the delivery of William Wade & Christopher Forsyth, Administrative Law 12 (Oxford, UK: Clarendon Press, 1994). 14

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goods or services. Notice, for instance, how Power Holding Company of Nigeria (PHCN), Federal Road Safety Commission (FRSC), Lagos State TrafficManagement Authority (LASTMA), Federal Inland Revenue Service (FIRS), the Economic and Financial Crimes Commission (EFCC), the Independent Corrupt Practices Commission (ICPC), the National Drugs Law Enforcement Agency (NDLEA), etc, routinely affect the lives, liberty and property of citizens. (d)

Another usual feature of administrative agency is their ‘independence.’ While such term expressly forms part of the name of some agencies (e.g. Independent National Electoral Commission [INEC], Independent Corrupt Practices Commission [ICPC]), it is implied in many, and unintended in others. Such independence may be indicated in the enabling Statute. But the concern here is to know why we are interested in the independence of the governmental agency.

We may settle this by yet another related question: why do we invest much to ensure the independence of the judiciary? The explanation lies in the fact that a person or institution empowered to pronounce on the rights and liabilities of others must be so placed in such a position as not to be unduly influenced by extraneous factors or interests.

But how do we determine the independence of these agencies? Independence, real independence, may not be found in the nomenclature of the agency but in some other instruments. For example, S. 4 of the EFCC Act 2004 forbids the President and Commander-in-Chief from appointing the Chairman or a member of the anti-corruption agency unless there is senatorial confirmation or concurrence. Independence could also be guaranteed where the position of members of the agency is tenured.

There are sundry arguments against the independence of governmental agencies including the one that making an agency independent undermines the capacity of the President to fully control governmental operations. But when we are confronted with the enormity of administrative functions, we would have no choice but to accept the vesting of powers in administrative agents as necessary evil, and to insist only on control of such powers. SELF ASSESSMENT EXERCISE 1 1. 2. What are the reasons for the late development of ‘Administrative law’? Enumerate the features of administrative law.