Professional Documents
Culture Documents
♣
Fasil Abebe
Introduction
Administrative law is the branch of the law governing the relationship between
the individual and the executive branch of the government when the latter acts
in its administrative capacity. The theme discussed in the following pages is
administrative litigation and not general administrative law dealing with
relations between agencies of the administration. The notes will deal with
judicial review of administrative action. This paper is limited to a comparative
exposition of the manner in which judicial review is treated in England and
France. The purpose is to assist the reader (and in particular law students) to
acquire knowledge of foreign systems.
♣
LL. B (Addis Ababa University), LL. M (University of Grenoble, France), Lecturer in
law, St. Mary’s University College.
4(1) Mizan Law Rev. NOTES ON ADMINISTRATIVE LAW 157
courts. Moreover, cases such as liability for accidents caused by motor vehicles
or accidents at work are reserved to the civil courts.
Most decisions deal with the first two claims and a special body of law has
evolved. The two principles guiding the courts are the principles of legality
meaning administrative decisions must be guided by the rule of law and the
principle of responsibility (or liability) which means the administration must pay
damages to an individual who is harmed by an administrative decision.
In the case of responsibility (liability) the rules governing the liability of the
administration are different from the rules of liability enunciated by the civil law
in matters among individuals. French law thus involves separate administrative
torts and administrative contracts, specially created to accommodate the rights
of the state and the rights of the individual and handled by the administrative
courts, not the civil courts. The administrative torts arise in the course of
operation of a public service and apply fault and no fault criteria peculiar to the
administration. Administrative contracts are also governed by special
administrative rules and are adjudicated by the special administrative courts. A
contract falls under this category if it deals with the provision of a public service
and contains clauses which are not found in ordinary contracts. Such cases are
considered as regulatory rather than purely contractual and they are, in effect,
subjected to special rules entitling the administration to a greater degree of
protection such as the power to a unilateral termination of a contract.
torts) are of course also regulated by the private law regime. The public law
nature of the activity does not depend solely on whether it is being exercised by
a public authority but also on whether it was being exercised in the interest of a
public function.
2.2-Grounds of review
A case that involves judicial review arises when the applicant alleges that a
particular administrative decision has caused some prejudice to her/him. The
decision can be challenged where the administration did not have the authority
to make the decision, or the decision was not consistent with the law, or where
the proper procedure was not followed. The action is available because the
administration is considered as having powers limited by law and that the courts
are legitimate interpreters of the extent of the powers granted to the
administration as a matter of constitutional division of powers. The nature of
the dispute usually determines how much the court will be willing to interfere to
correct a decision and there are very few general principles. The court usually
restricts itself to a policy principle that is considered as part of the legislation.
The course taken by the court will depend largely on the clarity of the
controversial legislation. English courts apply (as far as possible) the intention
of the legislator in contrast with the French administrative courts which in the
name of general principles of law have widened the scope of judicial review.
2.3-Categories of review
The grounds of review are based on abuse of discretionary power. It is referred
to as the ultra- vires rule and contains the following categories.
There will also be an error of law based on the courts’ interpretation of the
best manner of achieving the policy of the law. The concern is to prevent the
administration from unnecessarily extending the powers given to it by law. The
courts have traditionally assumed the responsibility to have the last word in
stating what the law is in a particular case. The courts control decisions which
are made outside the limits set by legislation. This can mean exceeding or
abusing the powers given to the authority as in cases of either stepping outside
the reasonable limits of power or basing a decision on irrelevant considerations.
The power given must also be exercised by the person authorized by law.
Unauthorized delegation is considered illegal. The power of the public authority
to issue directives and standards are limited although they are made in the
interest of clarity. This is called rule making as opposed to adjudication. But
these forms of self regulation must not limit the entitlements of the individual
under the parent legislation.
The authority is also not allowed to fetter the power given to it by
legislation, e.g. adopting a rule that certain applications will be refused instead
of examining each application. Failure to give reasons or to maintain
proportionality between the action taken and the purposes of the statute can also
serve as a ground of review.
the story. The nature of the case will determine how much hearing will be
required.
2.4-Types of Remedies
a) The first group of remedies which have been operational for a long period
are:
• Certiorari (annulling an illegal decision);
• Prohibition (ordering that some act not be done by the
administration); or
• Mandamus (ordering that something be performed by the
administration).
b) The second group of remedies were originally used in the private law context
but have gradually been adopted in administrative law. This category of
remedies consists of:
• Declaration in which the court limits itself to declaring the law on a
particular subject;
• Injunction, by way of a temporary relief until final decision is
rendered;
• Entitlement to damages through an award of compensation for
harm caused to the complainant.
The court that hears administrative dispute litigation is the Queen’s Bench
division (high court). It has supervisory jurisdiction in contrast to its powers to
hear all other disputes called original jurisdiction. Appeals to the high court are
possible from the decisions of administrative entities. There will be a right of
appeal to the ordinary courts of appeal i.e. the Privy Council or the House of
Lords. So there is no separate hierarchy of administrative courts as in France.
It is to be noted that the principles that resolve administrative law disputes
are public law remedies and cannot be regarded as private law remedies.
Remedies that are of a purely public law nature cannot be exercised in the
context of pure private relationships which give greater power to courts. ■
Major References:
• Brown, L. Neville & Bell, John S. (1993), French Administrative law (Oxford:
Clarendon Press).
• Bell, John (1992), French Constitutional Law (Oxford: Clarendon Press).
• Bradley, A.W. & Ewing K.D. (12th Edition, 1997), Constitutional and
Administrative Law (London & New York: Longman).
• Cane, Peter (1996), An Introduction to Administrative Law (Clarendon
Press).