1 Contents DEFINITION, NATURE AND SCOPE OF ADMINISTERATIVE LAW

Chapter I 1.
Definition of Administrative Law

Pages
2 4 8 10 10 11 16 18 21 22 33 34 35

1.2 The Nature and Scope of Administrative Law 1.3 1.4 1.4.1 1.4.2 1.4.3 1.4.4 1.4.5 The Development of Administrative Law Separation of Powers The Functions of Legislature, Executive and Judiciary The Doctrine of Separation of Power Practice in Various Countries Practice in U.S.A Practice in Other Countries

1.5 Separation of Powers in Myanmar Key Terms Assignment questions Short Questions

2 CHAPTER I ) DEFINITION, NATURE AND SCOPE OF ADMINISTERATIVE LAW

I.

Definition of Administrative Law

H.W.

p H

Maitland, in his lectures on the Constitutional History of England delivered in 1887-88 discussed the definitions of Constitutional Law and Administrative Law merely He determined what person or classes of persons bore the sovereign powers, while administrative law determined the ends and modes to and in which the sovereign powers exercised. Maitland Holland

The

Constitutional

History

of

England

Maitland regarded this definition of Constitutional law as too narrow. Maitland

He next turned some statement by Holland whose views he summarized by saying I think we catch his idea if we say that while constitutional law deals with structure, Administrative law deals with function.

3 Holland

Professor H.W. R Wade said, the easiest though perhaps the least satisfactory, of the possible definitions is to be found by appropriating one of the three sectors of the traditional separation of powers. If the powers and authorities of the state are classified as legislative, administrative and judicial: then administrative law might said to be the law which concerns administrative authorities as opposed to the others. H.W. R Wade )

Sir Ivor Jenning has written; Administrative law is the law relating to the Administration. It determines the organization powers and duties of administrative authorities. This is the most commonly accepted definition in 1960s, but it is not the satisfactory one, because which in its usual meaning. Sir Ivor Jenning

The Law and )

the Constitution

S.A de Smith said; we can take it to mean the law relating to public administration. In other words, it is the law relating to the organization, composition, functions and procedures of public authorities and special statutory tribunals, their impact on citizens.

4 S.A de Smith

The American jurist Frank J Good now in his Principle of Administrative Law of United States, observed as Administrative Law is, therefore, that part of the law which fixes the organization and determines the competence of the authorities which execute the law, and indicates to the individual remedies for the violation of his rights. Frank J Good

F. Trowbridge in his Federal Administrative Law having considered the various definitions concluded thus it may be said, at least in a practical sense, that Administrative Law is a set of legal principles governing the acts of public agents which conflicts with asserted private rights and which are not performed directly by legislative, or judicial bodies of the government. F. Trowbridge

However, the most common accepted definition is Administrative Law is the law relating to public administration.

1.2 The Nature and Scope of Administrative Law

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

Administrative Law is the relating to public administration. H W R Wade But Foulkes, in his Introduction to Administrative of Law mentioned that; Administrative Law concerned not only with powers but with liabilities, both of authorities and their employees. Foulkes

A.W Broadly said in his Constitutional and Administrative law that the Administrative law is a branch of public law which is concerned with the composition, powers, duties, rights and liabilities of various organs of government which are engaged in administration. A.W Broadly

On the broad definition, administrative law includes not only the law relating to the structure of central and local government, but also the law dealing with the social service the public utilities and control and the regulating of private activities, whether for social, economic or environmental reasons.

Administrative law may be looked at in two ways, first as an instrument of control of the exercise of administrative powers and secondly as an instrument for getting thing done by the creation through legal processes of institutions and the granting of them of powers and duties.

One of the commonest administrative activities is legislation under powers delegated by the Parliament, and their delegated legislation is certainly a subject of administrative law.

A more useful approximation is to say the administrative law is concerned with the operation and control of the powers of administrative authorities, with emphasis on function rather than on structure.

So a study of administrative law will emphasize what happen when the administrative action impinges on private rights and when claims and controversies arise in the course of administrative process and they lay particular stress on machinery for the redress of wrongs and grievances.

Professor Wade said since it deals with governmental power, administrative law itself is part of constitutional law and he also said that: Administrative law includes the whole constitutional law except the parts of which concern the legislature and judiciary.

7 H W R Wade

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

authorities and functions; it is concerned also with the bodies which exercises these powers. In a study of Administrative Law, the emphasis is the use of administrative power and therefore of protection against alleged abuse of power.

1.3 The Development of Administrative Law )

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

8 After the Second World War there have been profound changes in the general, social and economic trends and in the attitude towards administrative and social control.

As a consequence, the field of government activities and the exigencies of administration have been expending from time to time.

Therefore, the legislature has to depend more and more on the administrative machinery for the satisfactory implementation and execution of its policies.

This has led to the investing of wider power by the legislatures in the administrative agencies to be exercised on its discretion.

Hence arose the necessity of delegating to administrative agencies the functions of working details and also to supplement and complement the polices and the rules of conduct expressed in the statutes.

With the increase of the power of the administrative bodies it has become necessary to provide guidelines for the first exercise of their power.

In order to prevent the abuse of that power, the court have to intervene and control indeed, because of this situation the judiciary must play an important role to control the exercise of discretionary power by the administrative authorities. It could be described

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

The growing complexity of the present day raising problems of equal complexity requires the study of administrative law. So that the administrative law has become an independent branch of study. It was denied recognition for long both in the United Kingdom and the United States of America in the days of Dicey.

In 1946 a Select Committee on Legal education urged that administrative law was a subject fit to be taught at Universities in England.

In 1888 Maitland, the legal and constitutional historian observed the existence of Administrative law. But the powerful influence of Dicey who alleged repudiates its existence in 1885 continued to affect the thinking till the appointment of the committee on Ministers power in 1929. Even in 1935 Lord Hewart, then the Lord of Justice of England dismissed the term Administrative law as Continental Jargon. 1888 Maitland

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Lord Hewart In the United States of America the man, first to takes up the administrative law, as a separate subject was good now who brought out his book on Comparative Administrative Law in 1893.

In Myanmar, we had started to study this subject as one of LL.B course in 1967 at the beginning of the new system of legal education at Arts and Science University of Yangon.

Formerly the administrative law was dealt with the books of Constitutional Law and a separate treatment of subject was rarely taken.

Now, it has become an independent branch of study books on administrative law has separated from Constitutional Law. Besides it become the most rapidly developing area of public law in various countries. 1.4 SEPARATION OF POWERS

1.4.4

The Functions of Legislature, Executive and Judiciary

11 The functions of government have often been divided into three classes. They are legislative, executive (or administrative) and judicial. The legislative function involves the enactment of general rules determining the structure and power of public authorities and regulating the conduct of citizens and private organizations. In the United Kingdom, legislative authority is vested in the Queen in Parliament. In the U S A legislative power is vested in the Congress and Japan it is vested in the Diet.

The executive or administrative involves the continuing maintenance of a states government. It comprises the whole croups of authority to govern, other than that which involved in the legislative functions of Parliament and the judicial functions of the courts. Historically the Executive was identified with the sovereign, in whose name many executive acts are still performed by the president, Prime Minister, Cabinet and other ministers. But the Executive to day includes all those officials, public authorities and other agencies by which executive functions are performed.

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The judicial function is to determine disputed question of fact and law in accordance with the law lay down by Parliament and expounded by the Courts. The function is exercised mainly in the civil and criminal courts by professional judges.

It may be said that within a system of government, these are legislative executive and judicial functions to be performed and that the primary organs for discharging these functions are respectively the legislature, the executive and the courts.

1.4.2 The Doctrine of Separation of Power

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

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

13 It is traceable back to Aristotel; it was developed by the Englishman John Locke in17th century. The doctrine of separation powers was developed by the French Jurist, Montesqueu, who based his exposition on the British Constitution of the early 18th century. Aristotel Locke Montesqueu The essence of the doctrine of Montesqueu is that: Montesqueu When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty. Again there is no liberty power be not separate from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control: for the judge would then be the legislator. Were it joined to the executive however, the judge might behave with violence and oppression. There would be an end to everything, were the same man, or the same body, whether of the nobles or of the people, to exercises these three powers, that of enacting laws, that of executing the public resolutions, and of trying the cause of individuals. John

14 Wade and Phillips observed the statement of Montesquieu that, within a system of government based upon law the judicial should be exercised by a body separate from legislature an executive Montesquieu did not, it may be surmised, mean that legislature and the executive ought to have no influence or control over acts of each other, but only that neither should exercise the whole power of the other. Montesquieu Wade and Philips

S.A de Smith restated the formulation of Montesquieu and his Constitutional and Administrative Laws as follows: S.A.de Smith Montesquieu The doctrine, as propounded by Montesquieu and his follower, may be stated briefly:

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

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

3. The concentrate more than class of function in any one person or organ of government is a threat to individual liberty. For example, the Executive should not be allowed to make laws or adjudicate on alleged breaches of the law; it should be

15 confined to the executive functions of making and applying policy and general administration.

Even if one accepts the first two positions, one is not obliged to accept the third. To concentrate a large quantity of power in the hands of one person, in the absence of proper safeguards, is surely more dangerous than to combine a few powers analytically different in quality in the same hands, if adequate safeguard exist.

And rigorous segregation of functions may be highly inconvenient. In many countries subscribing to versions of separation of powers doctrine, rule-making powers have been vested in the Executive because it is manifestly impracticable to repose such powers exclusively in the Legislature. The third proposition stated above is therefore both extreme and doctrine, and is not taken literally by proponents of the theory.

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

(a)that the same persons should not form part of more than one of the three organs of government, for example that ministers should not sit in Parliament: ) ) (b) the one organ of government should not control or interfere with the work of another, for example that the Judiciary should be independent of the executive or that minister should not be responsible to Parliament.

) (c) that one organ of government should not exercise the functions of another, for example that ministers should not have legislative.

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In considering each of these aspects of separation it needs to be remembered that completed separation of powers is possible neither in theory nor in practice.

According to the above mentioned accepted doctrines by different jurists we can see that Montesquieu lays emphasis on absolute separation contrast with S.A de Smith. Wade and Phillips conceptions which denied the complete separation of powers. Montesquieu

1.4.3. Practice in Various Countries

Practice in United Kingdom

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

It has mentioned in the report of the Committee on Ministers Power in the following words:Committee on Ministers Power

in the British Constitution there is no such thing as the absolute separation of legislative, and judicial powers; on practice it is inevitable that they overlap. In such Constitution those of France and the United States of America, attempts to keep them rigidly apart have been made, but have proved unsuccessful. That distinction is nonetheless real and

18 important. One of the main problems of modern democratic state is how to preserve the distinction whilst avoiding too rigid an insistence on it, in the wide borderland where it is convenient to entrust minor legislative and judicial functions to executive authorities.
1

According to the above report it can be construed that instead of applying the doctrine in a strict sense in the functional organization of the government it should be deemed to require a system of check and balances among the three department of government while opposing monopolization of government power by any of the three departments.

In practice, in U.K, while the functions of legislature and executive are closely interrelated and ministers are members of both, the two institutions of Parliament and Government are distinct from each other. The formal process of legislation is different from the day to day conduct of government, just as the legal effect of as Act of Parliament differs from that of an
1

Report of the Committee on Ministers Powers

19 executive decision. Practical necessity demands a large measure of delegation by Parliament to executive power to legislate. The independence of the judiciary is maintained, but many disputes which arise out of the process of government are entrusted not ordinary courts but to administrative tribunals: recent legislation has sought to maintain the impartiality of these tribunals and to preserve essential features of fair judicial procedure.

1.4.4 Practice in U.S.A

In the U S Constitution of 1787 the separation of powers was clearly expressed. The frames of the constitution intended that a balance of powers should be attained by vesting each primary constitutional function in a direct organ. Possibly they were initiating the form of the British constitution but by the time in Britain executive power was passing from the crown to the cabinet. The U S Constitution vests legislative powers in Congress, consisting of a Senate and a House of Representatives (article 1), executive power in the president(article 2), and judicial power is the supreme court and such other federal courts as might be established by Congress.Article (3). The President holds office for a fixed term of four years

20 and is separately elected: he may therefore be of a different party from that which has majority in either or both Houses of Congress. His powers, like those of Congress are declared by the constitution. While the head of the chief departments of state are known as the Cabinet, they are individually responsible to the President and not to Congress. This system of a Presidential executive is quite different from that of Cabinet government in Britain.

) Neither the President nor members of his Cabinet can sit or vote in congress; they have not direct power of initiating Bills or securing their passage through Congress. The President may recommend legislation in his messages to Congress, but he cannot compel it to pay heed to his recommendations while he has a power to veto legislation passed by Congress. Treaties may be negotiated with the President, but must be approved by a twothirds majority of the senate. The President has power to nominate to certain key offices,

21 including judges of the Supreme Court, but the senate must confirm these appointments and may refuse to do so. The President himself is nor directly responsible to Congress for his conduct of affairs in normal circumstances he is irremovable from office, but the constitution does authorize the president to be remove for office by the process of impeachment at the hands of the Senate, for treason, bribery, or other high crimes and misdemeanors (article 2)4). The prospect of such impeachment was the immediate cause of president Nixons resignation form office in 1947 following his complicity in Watergate affairs once appointed, the juiceless of Supreme Court are independent both of Congress and President, although they too may be removed from office by impeachment. Early in the history of the United States, the Supreme Court assumed the power, notable by the historic decision of Chief Justice Marshall in Marbury V Madison (1803), Cranch 137, of declaring both the acts of legislative and the acts of President to be unconstitutional. The Supreme Court has ruled that the doctrine of separation of powers express in the Constitution excludes any extensive delegation on of legislative power by Congress to executive agencies.

(senate)

) )

22 ))

Marbury V Madison (1803), Cranch 137, )

Even in the US. Constitution, there is not a complete separation of powers between the executive, legislative and judicial function, if by this is meant that each power can be exercised in complete isolation from the others. Indeed, having established the threefold allocation of functions as a basis, the Constitution proceeds to construct an elaborate system of checks and balances designed to enable control and influence to be exercised by each arm of Constitution upon the others.

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1.4.5 Practice in Other Countries

Many other constitutions have been influenced by the separation of powers. In France, the doctrine has been of great importance but it has manifested itself very differently from the American version: thus it is considered to floe from the separation of powers that the ordinary civil and criminal courts in France should have no jurisdiction to review the legality of acts of the legislature or executive: in place of ordinary courts the Conceal d Etta, structurally part of the executive. The Constitution of the Fifth Republic adopted in 1958 was intended to create a stronger Executive: the circumstances in which the Government could be complied to resign were restricted, and the powers of the President to rule by decors were enlarged.

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1.5 Separation of Powers in Myanmar Naing Negun

In Myanmar we will study under three constitutions. The first one is the Constitution of the Union of Myanmar 1947, the second one is Constitution of Socialist Republic of the Union of Myanmar and the third one is Constitution of Republic of the Union of Myanmar 2008.

Under 1947 constitution, the President is the titular Head of State. The executive authority of the Union shall be vested in the President (s 59) The President shall be elected by both chamber of Parliament in joint session by secret ballot (46) The President shall, on the nomination of the Chamber of Deputies, appoint a Prime Minister who shall be the head of the Union Government.(s 56(1)) He shall also appoint the other members of the Union Government.(s(56)2) The Union of Government shall consist of the Prime Minister and other

25 members appointed under (s 56 and 114) and the Government shall be collectively responsible to the Chamber of Deputies, (s 115). ) ) ) )) ))

Section (s 65) of the Constitution of the Union of Burma says, the legislative power of the Union shall be vested in the Union Parliament besides s 80 vested in Parliament the sole and exclusive power of the making law in the Union. The proviso to the section adds that the power may be delegate to make rules and regulations under and Act; but the rules and regulations so made must be laid before Parliament for approval.

A bills passed by a simple majority by both Chamber goes to the President for his signature and promulgation and the President shall promulgate very law enacted by the Parliament.

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Section 141 of the constitution lays down that all judges shall be independent in the exercise of their judicial functions and subject only to the laws and the constitution. Supreme Court is the final Court of Appeal for the Union and it has the right to issue special writs, which may also grant special leave to appeal from any judgment, decree or final order of any court. The Supreme Court is a Court of Record, and has supervisory powers over all courts in the Union, and is decisions are binding upon all those courts. (s 152)

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

Continue, we shall proceed to the separation of powers under the Constitution of Socialist Republic of the Union of Myanmar.

Article (a) of the constitution mentioned that National sovereignty shall reside in the entire State. The important article is (12) which state "The sovereign powers of the State,

27 legislative, executive and judicial reside in the people, compresing all national races whose strength is based on peasants and workers. The Pyithu Hluttawa, elected by citizens having the right to vote, exercise the sovereign power invited in it by the people and delegates to Organs of State Power in accordance with the Constitution". ) )

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

The Pyithu Hluttaw shall exercise the legislative power solely by it-self while it may delegate executive and judicial powers to the Central and Local Organs of State Power formed under the Constitution.

Besides, article 44 vests in the Pyithu Hluttaw the sole power of legislation. But according to article 45, the Pyithu Hluttaw may delegate executive and judicial powers of the State to Central and Local Organ of State Power in accordance with the constitution.

28 According to above mentioned provisions, the sovereign power is vested in the Pyithu Hluttaw exercising the legislative power by is self and may delegate the other two of executive and judicial powers. Under, article 83, the Council of Minister is the highest executive organ of the state, but it is responsible to the Pyithu Hluttaw when Pyithu Hluttaw is in session and to the Council of State when Pyithu Hluttaw is no session.

If we look at judiciary, The Council Peoples Justice is the highest judicial Organ on the state and; it shall form the necessary judicial court only with its members and administer justice (A(103 (a)&(b).

))

The Council of Peoples Justice shall be responsible to the Pyithu Hluttaw and shall report to the Pyithu Hluttaw on the state of the administration of justice. (A. 104) It shall supervise all judicial organs and courts within the state.

Therefore we can see that the Council of Ministers is highest executive organ and The Peoples of Justice is the highest jud icial organ of the State under the control of the Pyithu Hluttaw.

29 There are two Councils in order to control the powers of executive and judiciary. They are (1) the Council of Peoples Attorneys and (2) the Council of Peoples Inspectors. They are responsible to the Pyithu Hluttaw. Under article 112(b) the Council of Peoples Attorneys protects and safeguards the rights and privileges of the working people. Therefore an aggrieved party can be remedied through the Council of Peoples Attorney.

The Council of Peoples Inspectors is the highest organ of inspection of public undertaking.

So, there is unity of power and functions are separated under the control of Pyithu Hluttaw. There is also check and balance through the Council of Peop les Attorney and Council of Peoples Inspectors.

As for the Administrative machinery was broken down, the State Law and Order Restoration Council took over the power of the State on 18 September 1988. On 27
th th

May 1990, multi-party democracy general

th

election was held and from 9

January 1993, National Convention for the

new Constitution has been held.

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Under the State Peace

th

and

Developmen t

Council,

People's

Referendum was held on 10

May, 2008 throughout the country, relating to

the draft Constitution. The drafting commission on the new constitution was formed in 2007. The final draft was concluded in 2008. )

The State Peace and Development Council issued a notification,

dated 29

th

May, 2008, declaring that the Constitution of the Union of

Myanmar has been promulgated by the People's Referendum.

The Constitution of the Republic of the Union of Myanmar 2008 contained 15 Chapters and 457 Articles with five schedules. The Union Judiciary Law, Union Attorney General Law 2010, Union Goverment Law 2010, Laws relating to Pyidaungsu Hluttaw, Pyithu Hluttaw and Amyotha

31 Hluttaw were enacted in 2010 by the State Peace and Development Council according to this Constitution.

The Constitution based on the principle of separation of power and did not accept the doctrine of unified power. The three branches of sovereign power are separated and exert reciprocal control, check and balance among themselves. These powers are shared among the Union, Regions, States and Self-Administered Areas. Section (11)

) Legislative power was vested in the Pyidaungsu Hluttaw. Therefore Pyidaungsu Hluttaw is the highest organ of legislative power. Pyidaungsu Hluttaw consists of two Hluttaws that is Pyithu Hluttaw and Amyotha Hluttaw.

32 The legislative power of the Union is shared among the Pyidaungsu Hluttaw, Region Hluttaws and State Hluttaws. Legislature power stipulated by this Constitution shall be shared to the Self-Administered Areas. Section (12)(a)

) The Pyidaungsu Hluttaw shall have the right to enact law for the entire or any part of the Union related to matters prescribed in Schedule One as the Union Legislative List. )

The Region or State Hluttaw shall have the right to enact laws for the entire or any part of the Region or State related to matters prescribed in Schedule Two as the Region or State Hluttaw Legislative List.

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Key Terms
Administrative Constoitional Structure FictionTraditional separation of powers Legislative Judicial Tribunals Employees Alleged Abouse of power Doctrine of Separation of Power Function Legislature C Council C C P P P p p p J I p -

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Assignment Questions
1. Define and explain the meaning of Administrative Law.

2. What is the Nature of Administrative Law? 3. Study and development of Administrative law. 4. What are the functions of Legislature, Executive and Judiciary? 5. Explain the doctrine of separation of powers by Montesquieu.

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

2. What is the meaning of separation of power by Wade and Phillips? 3. Define the meaning of Administrative Law by Sir Ivor Jenning. 4. Define the term Administrative Law by Foulkes. 5. Define the term Administrative Law by Professor H.W.R Wade. 6. Define the term Administrative Law by S.A.de Smith. 7. Define the term Administrative Law by A.W Broadly. 8. Explain about administrative law in practice of France. .