Introduction
During the previous century, i.e. 20th century, there have been a rapid development of administrative law; this however does not mean that there was no administrative law before. The growth of administrative law has been due to the change of the philosophy as regarding to the role and function of the state. Currently the State is not a merely a police State, exercising sovereign function, but as a progressive democratic State, whereby it seeks to ensure social security and social welfare for the common man, regulating industrial relations, exercise and control over production, manufacture and distribution of essential commodities, tries to achieve equality for all and ensure equal pay for equal work. All these developments of State functions have necessitated the widening of the scope and ambit of administrative law.(see: U.P. Warehousing Corpn v Vajpayee(1980) 3 SCC 459)
Definition of Administrative Law
The concept of administrative law had posed a difficult approach for being defined, thus it is indeed difficult to provide scientific, precise and satisfactory definition. The attempts by various scholars in defining the term had encountered a challenge whereas some meaning were broad to include more than necessary or too narrow which do not include the necessary ingredients. For some of the scholars administrative law is a law relating to the control of powers of the government, whereas the main object is to protect individual rights. Others place greater emphasis upon rules which are designed to ensure that the administration effectively performs the tasks assigned to it. Yet to others see the principle objective of the law is to ensure government accountability, and fostering the participation by interested parties in the decision-making process .(see: Craig: Administrative Law, 1993, p.3)
The following scholars have defined the term administrative law:
Ivory Jennings
Administrative law is the law relating to administration. It determines the organization, powers and duties of the administrative authorities.
Criticism:
ü It does not distinguish administrative law from constitutional law; and
ü It is very wide definition
ü It does not include the remedies available to an aggrieved person when his rights are adversely affected by the administration.
Wade
Administrative law is the law relating to the control of the governmental powers.
Criticism:
ü The definition speak about the object of the administrative law but not the subject
ü It does not deal with the powers and duties of the administrative authorities or with the procedure required to be followed by them.
Griffith and Street
The main object of the administrative law is the operation and control of administrative authorities. Thus it must deal with the following aspects.(see: Principles of Administrative law, 1967, p.3 (aspect no. 1-3)
ü What sort of powers does the administration exercise
ü What are the limits of those powers
ü What are the ways in which the Administration is kept within those limits
ü What are the procedures followed by the administrative authorities. (see: Indian Law Institute: Cases and Materials on Administrative Law in India, 1966 Vol.1 (aspect no.4-5)
ü What are the remedies available to a person affected by administration
M.P.Jain
Administrative law deals with the structure, powers and functions of the organs of administration, the limits of their powers, the methods and procedures followed by them in exercising their powers and functions, the methods by which their powers are controlled including the legal remedies available to a person against them when his right are infringed by their operation. (see: Treatise on Administrative Law, 1996, Vol.1. P.13). According to this definition, administrative law deals with four aspects;
ü It deals with the composition and powers of administrative authorities
ü it fixes the limits of the powers of those authorities
ü It prescribes the procedure to be followed by these authorities in exercising such powers
ü It controls these administrative authorities through judicial and other means.
C.K. Takwani
Administrative law is the branch of the Constitutional law which deals with powers and duties of administrative authorities, the procedure followed by them in exercising the powers and discharging the duties and the remedies available to an aggrieved person when his rights are affected by an action of such authorities.(see: C.K. Takwani, Lectures on Administrative Law. P.4 )
Nature and Scope of Administrative Law
Administrative law deals with
ü The powers of the administrative authorities
ü The manner in which the powers are exercised; and
ü The remedies abused by these authorities
The main objective of the study of administrative law is to unravel the way in which these administrative authorities could be kept within their limits so that the discretionary powers may not be turned into arbitrary powers. (see: C.K. Thakker: Administrative Law, 1966)
Reasons for growth of Administrative Law
There are some factors which led to the rapid growth and development of the administrative law
ü The change of the role played by the State. The negative policy of maintaining law and order and of laissez faire is given up. The State has not confined its scope to traditional and minimum functions of defence and administration of justice, but has adopted the positive policy and as a welfare State, thus undertakes to perform various functions.
ü The inadequate of judicial system to decide and settle all types of disputes. There are slow process, expenses, in-expertise, complexity and formalities in normal courts
ü Inadequacy in legislative process, whereas the legislature has no time and technique to deal with all the details in respect of all matters
ü The flexibility of administrative process as compared to legislation process, whereas the rules made by administrative bodies are easily changeable than those by the parliament
ü Administrative bodies can avoid technicalities, whereas the administrative tribunals are not bound by rules of evidence and procedure like normal courts which are conservative, rigid and technical.
ü Administrative authorities can take preventive measures unlike the normal courts which wait for the parties to come before them in dispute.
Historical Growth and Development of Administrative Law
A: England
In England, the existence of administrative law was not accepted until the advent of 20th century. In 1885, Dicey in his famous thesis on the rule of law observed that there was no Administrative law in England, as he stated ‘In England, we know nothing of Administrative Law and we wish to know nothing about it (see: Robson: Administrative Law in England.) But while saying this, he ignored the existence of administrative discretion and administrative justice which were current even in his days.
However, in 1914 Dicey changed his view as he admitted that due to the increase of duties and authority of English officials, some elements of droit had entered into the Law of England, but he did not concede that there was administrative law in England.
Following the two decision of the House of Lords in Board of Education v Rice (1911 AC 179: 80 LJKB 496: 104 LT 689) and Local Government Board v Arlidge (1915 AC 120: 84 LJKB 72: 111 LT 950), Dicey was convinced that there is administrative law in England. This approach by Dicey made the knowledge of the existence of administrative law to suffer the consequences as observed by various scholars that,
ü Dicey misunderstood the scope and ambit of the administrative law, as he thought administrative law to be inconsistent with rule of law. Hence as he was studying rule of law, he excluded altogether administrative law and a special system of administrative courts
ü The study of administrative law had suffered a lot because of the Dicey’s conservative approach, whereas to many scholars the study of the administrative law was restricted only to two aspects, thus delegated legislation and administrative adjudication.
In 1929, the Committee on Minister’s Powers headed by Lord Donoughmore was appointed to examine the problems of delegated and judicial and quasi-judicial powers exercised by the officers appointed by the ministers and to suggest effective steps and suitable safeguards to ensure the supremacy of the rule of law.
In 1932, the Donoughmore Committee submitted the report with recommendations which led to the enactment of Statutory Instruments Act, 1946, the Crown Proceedings Act,1947 which made the Government liable to pay damages in cases of tortuous and contractual liability of the Crown, thus the abandonment of the famous doctrine that ‘the King can do no wrong’. In 1958, the Tribunals Inquiries Act was passed for the purpose of better control and supervision of administrative decisions of the administrative authorities and tribunals were made subject to appeal and supervisory jurisdiction of the regular courts of law.
B: Tanzania
Constitutional Law and Administrative Law
In many definitions of administrative law, it was included in constitutional law. Many of the texts have dealt with administrative law as part of constitutional law. In essence the administrative law does not differ from constitutional law as both
ü Are concerned with functions of the government
ü Are part of public law in a modern State
ü Have the same source, thus the Constitution
Distinction
ü Constitutional law deals with structure and the broader rules which regulates the functions WHILE administrative law deals with the details of the functions. (see: Maitland: Constitutional History, 1955)
ü Constitutional law is concerned with the organization and functions of the Government at rest whilst administrative law is concerned with the organization of those functions in motion
ü The Constitutional law deals with the general principles relating to the organization and power of the legislature, judiciary and executive and their functions inter se and towards the citizen.
Administrative law is that part of constitutional law which deals in detail with the powers and the functions of the administrative authorities, including civil services, public departments, local authorities and other statutory bodies.
Thus, while constitutional law is concerned with constitutional status of ministers and civil servants, administrative law is concerned with the organization of the services and the proper working of various departments of the Government.
Examples of Administrative Authorities in Tanzania
( a) Constitutional created
ü The office of President. Article.33 – 46B
ü The office of Vice President. Article.47 – 50
ü The office of Prime Minister. Article.51 – 53A
ü Ministries. Article.54 – 60
ü The offices of Regional Commissioners. Article.61
ü Local Government office. Article.145 – 146
( b) Statutory created
ü Tanzania Revenue Authority ( Tanzania Revenue Authority Act [Cap.399 R.E.2002])
ü The Occupational Health and Safety Authority (The Occupational Health and Safety Act, No.4 of 2003
ü Surface and Marine Transport Regulatory Authority (Surface and Marine Transport Regulatory Authority Act [Cap.413.R.E.2002]
ü Tanzania Food and Drugs Authority (Tanzania Food and Drugs Authority Act, No.1 of 2003)
ü Tanzania Civil Aviation Authority ( The Civil Aviation Act [Cap.80.R.E.2002]
ü The Tanzania Communications Regulatory Authority
ü Energy and Water Utilities Regulatory Authority
REFERENCES
1. C.K. Thakker: Administrative Law, 1966
External links
1. https://www.academia.edu/36820658/Differences_between_Constitutional_and_Administrative_Law
2. https://www.scribd.com/document/344379466/Difference-Between-Administrative-Law-and-Constitutional-Law
External links
1. https://www.academia.edu/36820658/Differences_between_Constitutional_and_Administrative_Law
2. https://www.scribd.com/document/344379466/Difference-Between-Administrative-Law-and-Constitutional-Law
