As it has been thoroughly discussed in the previous units, there are great possibilities that the three powers of government may be concentrated in the hands of many administrative agencies. The delegation of rulemaking and adjudicating powers to administrative agencies become an inevitable phenomenon of the complex technological world. In addition to the broad discretionary administrative powers originally entrusted to the executive organ and its agencies by the constitution, the delegation of rulemaking and adjudicating powers to these agencies, although may be justified by certain social and economic rationales, pose an inevitable threat on individual freedom and liberty. As propounded by the French political philosopher, Montesquieu, where the tripartite powers are merged in the same person, or in the same body, there can be no liberty as the life and liberty of the subject would be exposed to arbitrary control. So, the rational fear created by the concentration of the tripartite powers (administrative, legislative and judicial) in the hands of the same person or body of persons coupled with the discretionary nature of administrative powers which is susceptible to abuse, urges for devising legal and institutional devices that are important to control the arbitrary exercise of powers by administrative agencies.
The principle of separation of state power is proved to be an effective mechanism for controlling abuse of powers. It is founded on the presumption that the division of state power between the legislature, executive and the judiciary can best protect individual liberty and democracy. The purpose of the principle of separation of power is to prevent any single branch of the government from becoming too powerful, providing a series of checks and balances; it is to curve despotism and arbitrariness and to promote liberty, democracy and good governance by creating a system of check and balance. As James Madison noted in the Federalist No. 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
However, the doctrine of separation of state power among the three branches of government should not be interpreted in its extremity. In reality, there is no move for the pure separation of state power as such in this contemporary world. Because of the various social, economic and political justifications discussed in the previous chapters, the delegation of rulemaking and adjudicating powers to administrative agencies is becoming an inevitable and blessing phenomenon in this technologically advanced and complicated world. Thus, acknowledging the inevitability and importance of the delegation of relatively broad discretionary powers to administrative agencies in this complex world; appreciating the resultant possibilities of concentration of tripartite powers in the hands of a government agency, and the possibility these powers may be abused unless checked, there comes the need to devise the mechanism for controlling the powers of these agencies. The existence of various checking mechanisms of power may induce administrative agencies to use the powers entrusted to them in the interest of the public. In relation to this issue, the Chief Justice of the Australian High Court, the Honourable AM Gleeson, quoted from an article written by the Chief Justice of Canada in 1998 that exposes the underlying philosophy of administrative law as follows:
“Where a society is marked by a culture of justification, an exercise of public power is only appropriate where it can be justified to citizens in terms of rationality and fairness. Arbitrary decisions and rules are seen as illegitimate. Rule by fiat is unaccepted. But these standards do not just stand as abstract rules. Indeed, most importantly, the ability to call for such a justification as a precondition to the legitimate exercise of public power is regarded by citizens as their right, a right which only illegitimate institutions and laws venture to infringe. The prevalence of such a cultural expectation is, in my view, the definitive marker of a mature Rule of Law.”
No matter how fair and efficient a bureaucracy is, it will always require supervision. Abuses of power can never be entirely eliminated. Legitimate differences of opinion are bound to arise between honest bureaucrats and honest citizens. Moreover, the mere possibility of review helps ensure that the first-instance decisions are considered and rational.
As the experience of many jurisdictions in the modern democratic world indicates, there are different devices that can be used to control the powers of administrative agencies. That is, there are different controlling mechanisms that can be set in parallel to supplementing each other in checking the powers of administrative agencies. Some of the commonly used controlling mechanisms are:
- Internal administrative review by superior officials;
- Parliamentary control;
- Political control;
- External administrative review by tribunals;
- External scrutiny and recommendations by Ombudsmen and other watchdog institutions and
- Judicial control
Most of these controlling mechanisms are introduced through legislation in many jurisdictions. The diversification of the controlling mechanisms is partly justified by the perceived inadequacies of each mechanism to check the ever increasing involvement of the government in matters that affect the interest of the citizens. They were designed to improve the quality of administrative decision-making by providing effective alternative checking mechanisms that would be appropriate under the given circumstance. Putting the appropriate controlling or checking mechanisms in place would promote the following benefits:
- Improves the quality, efficiency and effectiveness of government decision-making generally;
- Enables people to test the legality and merits of decisions that affect them;
- Provides mechanisms for ensuring that the government acts within its lawful powers;
- Provides mechanisms for achieving justice in individual cases and
- Contributes to the accountability system for government decision-making.
The term internal control refers to the type of controlling mechanisms that are set within the organizational structure of the various administrative organs of the government. For administrative convenience, administrative agencies usually have internal structure. Formally or informally, original decisions of the authorities within the lower structure of the administrative hierarchy are subjected to review by those in the next upper hierarchy. Internal review is the process by which original agency decisions are reviewed on their merits within the responsible government agency. An internal review officer can usually substitute a new decision if the decision under review is found to be defective on matters of law, the merits or administrative process. In some areas of government administration, there is a formal system for the internal review of agency decisions. The internal review system in these areas is created and regulated by legislation, in the same way as other review methods. Even where there is no statutory requirement, it is common for an informal internal review system to be established on an administrative basis within government agencies.
In the parent act/ enabling legislation or an executive order as the case may be, a mechanism for internal review may be established. As stated above, an internal review is a process by which original agency decisions are reviewed on their merits within the responsible government agency. This type of review gives opportunity for agencies to reconsider their decisions and rectify the mistakes, if any. The enabling legislation or the executive order by which the agency is created may include, in that act, a formal system for the internal review of agency decisions. In the absence of such formal mode of controlling, the agency using its discretion can set informal controlling mechanisms in place.
The term ‘external control’ in administrative law context refers to the various limitations imposed upon the powers of administrative agencies by other authorized bodies that are found outside the structure of such agencies. These types of controlling mechanisms include executive/political control, parliamentary/legislative control, control by administrative tribunals, judicial control, control by watchdog institutions and the mass media. Despite the difference in the mode and scope of these controlling mechanisms, all of them have positive contribution in promoting the principles of good governance.
As was repeatedly stated earlier, while appreciating the importance of delegating powers to administrative agencies in promoting efficiency and effectiveness in the administration and implementation of public policies, it is equally important to take note that unless otherwise safeguards are put in place, such power may be abused and used to promote evil motives. Having appreciated the side effects of delegation of rulemaking powers to administrative agencies, the parliament can put effective checking mechanism in place. First and foremost, the parliament has to make sure that all necessary precautions are taken that the enabling legislation/parent act does not devolve wide delegated powers which may be difficult to control. These include attaching riders to agency appropriation bills, conducting oversight hearings, reducing agency budgets, and amending statutes. Of course, if the legislature is extremely dissatisfied with the performance of a particular agency, it may rewrite the statute that created the agency in the first instance. By amending the appropriate statute, the legislature may enlarge or contract the agency’s jurisdiction as well as the nature and scope of its rulemaking authority. In this regard, it is quite important to appreciate the experience of Britain and United States together with Ethiopia for comparative purpose.
From Cumper &Walters, Constitutional & Administrative Law pp. 26b-271.
There are different procedures for controlling delegated agency legislation. As with primary legislation there is an opportunity for the extent and purpose of the delegated legislation to be discussed, both in the parliament and at the committee stage. The usual procedures of both Houses may be employed (e.g., parliamentary question time, adjournment motions etc.). However, the very pressure on parliamentary time which in the first place necessitates delegation may actually prevent any really effective consideration at this stage in the first place. Instead, control may be exercised through procedural requirements for laying the instrument before the parliament, or through scrutiny by the Select Committee on Statutory Instruments.
Laying the Instrument before Parliament
Laying the Instrument before Parliament is a procedural requirement that the parliament may use to check the legality of an agency’s delegated legislation at various stages. Whether or not an instrument must be laid before the parliament will depend on the provisions of Parent Act. An instrument is usually presented before both Houses, with the exception of financial matters, which are only laid before the Commons. As Cumper & Walters stated, laying before Parliament may take one of the following forms:
(a) Laying simpliciter: The Parent Act may do no more than make it obligatory for the instrument to be laid on the table of both Houses for the information of members. No resolution is necessary for the instrument to become effective.
(b) Laying subject to negative resolution
In this case, there are two types of procedures. The first is that the final instrument to be laid down before the parliament will automatically come into force after 40 days, unless before the expiry of that time either the House passes a resolution that the order be annulled. The second is that an order may also be laid in draft form subject to a similar resolution that no further proceedings is be taken – in effect a direction to the minister is not to make the instrument.
In both cases, no amendments can be made so it can only be accepted or rejected. The 40 days excludes any time during which the parliament is dissolved.Minister concerned will usually be able to count on a government majority, it is unlikely that such an instrument would be annulled.
(c) Laying subject to an affirmative resolution
By this procedure an instrument which is not approved within 40 days of its being laid before the House will not come into effect. Minister concerned must therefore, present the instrument for approval and government time must be found to deal with it. Usually amendments are not possible. An instrument may also be laid in draft subject to an affirmative resolution before it can be ‘made’. The instrument can be laid down in one of the following three forms:
- Laying of draft instrument before the parliament and requiring affirmative resolution before instrument can be made;
- Laying instruments after it had been made to come into effect only when approved by affirmative resolution;
- Laying of instruments that take immediate effect but requires approval by affirmative resolution within a stated period as a condition for its continuance.
Scrutiny in Committee: This is another important controlling mechanism of agency rulemaking widely used in Britain. A joint committee of both Houses of the Parliament scrutinizes statutory instruments and draft instruments where appropriate. The Joint Select Committee on Statutory Instruments is required to consider whether the attention of each House should be drawn to the instrument. The department concerned should first be given the opportunity to forward its case. The committee consists of seven members of each House, Council to the speaker and Council to the Lord Chairman of Committees. It is a convention that the chairperson is from the opposition.
The most important aspect of the Joint Select Committee on Statutory Instruments is that it submits regulations for parliamentary debate and scrutiny. Government departments are aware of its ‘critical eye’. Adverse reports from the Committee can lead to a prayer for annulment, or force a department to revoke, or amend a particular instrument.
In addition to the scrutiny of subordinate legislations by Parliament and the Joint Select Committee, there exists also ‘political’ control through the procedural requirements of consultation and publication. Acts of parliament sometimes provide that the Minister may or shall consult with interested bodies or advisory committees before issuing regulations. The Parent Act may, therefore, stipulate that there must be consultation in either general or specific terms. Consultation with interested parties is now common for the reasons of political expediency as well as legal necessity. Such bodies may be specified in the Act or chosen at the Minister’s discretion but, while Ministers may be obliged to consult, they are not normally bound to follow the advice offered. As to the effect of publication, delegated legislation usually comes into force when it is made unless some other date is specified in the Parent Act. Twenty-one days are usually allowed from the date it was laid before the Parliament. Section 2 of the Statutory Instrument Act 1946 provides that after a statutory instrument has been made, it shall be sent to the Queen’s Printer of Acts of Parliament. There it is printed, numbered and usually made available to the public at Her Majesty’s Stationary Office as soon as possible. The basis of the requirement of the publication is that if every person is to be presumed to know the law, then the contents of the law must be accessible to him/her.
From Aman & Mayton, Administrative Law (2nd ed.), PP. 565-612
The US Congress has a variety of ways of exercising its oversight functions. First, along with the executive branch, the Congress is involved in the appointment process. Agency heads and other “officers of the United States are appointed by the President with the approval of the Senate. The Congress also has the “power of the Purse” and agencies must regularly submit their operating budgets to the Congress. In addition, Congress may compel an agency to report to it regularly by means of committee or subcommittee hearings or more formal, field reports. These reports and hearings can also encourage informal contacts between agency and congressional staffs that provide another form of congressional feedback and oversight.
The Congress also exercises various forms of statutory control. The Congress delegates power to agencies by the statutes it drafts. An agency’s enabling regulatory statute defines the scope of the agency’s authority and the Congress sets forth the procedures that an agency must use in exercising its authority and it establishes the agency’s structure. The Congress can and does create a variety of agency forms and structures, each with different implications for the relationship of that agency to the Congress and the Executive Branch. Based on their organizational structure, administrative agencies can be classified into independent and dependent agencies. Independent agencies serve under the Congress and have been described as the agents of the Congress.
Political control of the agency’s discretionary power is perhaps the other most visible and most effective means through which the Congress can exert influence over the administrative agencies through the appropriate process. Budgetary hearings in both of the Houses of the Congress are opportunities for members of the appropriation committee to review agency performance, and affect future agency policy by changing the levels of funds appropriate for certain purposes.
After passing the authorizing legislation for an agency and appropriating funds to it, the Congress can still monitor the performance of an agency through the process of the congressional oversight. Oversight is an important test of the political acceptability of the regulation. Statutory standards usually do not provide precise notice of the policy which will emerge from the agency so that many people who have never had the chance to affect the formulation of the legislation may be affected by its implementation. Many statutes specifically provide for periodic oversight hearing by the Congress. In addition, a congressional committee or subcommittee can call an oversight hearing at any time to enquire into a particular agency’s policies and programs. Such hearings are particularly valuable to the members of the Congress because of the fact that they provide legislators a visible opportunity to press for regulatory initiatives which can affect the public interest. They are especially effective when undertaken by committees which focus on specific areas of policy. In addition to the formal oversight devices of a committee hearing, there exist less formal ways through which individual members of the Congress can exert influence over agency policymaking. One method used by every member of the Congress is intervention in matters pending before an administrative agency, usually those that made on behalf of the constituents. The nature of these inquiries made by members of the congress and their staffs to agency personnel can range from status reports on an individual’s request currently before the agency to complaints regarding the substance or procedure of the current regulatory scheme. While this type of activity will not usually lead to substantive changes in a particular agency’s regulatory scheme, it can lead to an accelerated decision on a particular party’s claim before the agency, or an informal review of procedures by agency officials who are aware of the potential power which an individual member of the congress may hold. It is proper for a member of the Congress to represent vigorously the interest of his or her constituents before an administrative agency engaged in general rulemaking so long as he or she does not frustrate the intent of the Congress as a whole or undermine the applicable procedural rules.
Another important mechanism that the US Congress controls Agency Discretion is through the Statutory Techniques. Over the years, the Congress has also passed numerous statutes which are designed to affect the substance of agency decisions through the implementation of generic procedural requirements. One of these statutes is that the National Environmental Policy Act of 1969 (NEPA). That Act was a response to a growing national concern over the state of the environment. It sets forth procedural requirements to assure that agencies will consider substantive environmental values in the formulation and implementation of policies. The core of the Act is a requirement that an agency must prepare on environmental impact assessment report before taking any major administrative action. This report must identify the possible effects of the proposed action on the environment, and must evaluate possible alternatives. Although NEPA does not say that all actions which are hazardous to the environment must be avoided, it has the effect of the increasing administrative awareness of the environment, and often fosters rethinking of government actions. Another statute through which the Congress is able to influence administrative policy through procedural means is the Regulatory Flexibility Act of 1980 (RFA), that also amended in 1996. Through out the mid of the sixteenth to late seventies the Congress became increasingly concerned with the impact that regulation, especially environmental and health regulation, upon small business. These regulations often had a disproportionately greater economic effect on small business, hurting their competitive positions. Under the RFA, an agency must study the economic effect which proposed actions will have on small businesses, as well as review and reevaluate regulations. By requiring that agencies consider a rule’s impact on small businesses, this statute effectively slows down the development of new initiatives and fosters the development of alternative actions.
The 1980 Regulatory Flexibility Act (RFA),that also amended in 1996, requires that whenever agencies engage in rulemaking they should consider special circumstances and problems of the small entities. In 1996, the Act was extended to Internal Revenue Service (IRS) interpretive rules that regulated information collection from small entities. Each time the agency promulgates an information collection rules, it must prepare a regulatory flexibility analysis that describes the likely effect of the rule on the small entities. The Unfunded Mandates Reform Act of 1995 also triggers regulatory review. This legislation requires the Congress and the federal agencies (except independent agencies) to give special consideration to all legislations and regulations likely to impose mandates on state, local, and tribal entities. Agencies in particular are required to prepare a regulatory analysis for any rulemaking likely to impose costs in excess of 100 US Dollars on the private sector.
Legislative Veto was the other mechanism through which the US Congress has been exerted control over agency rulemaking. Prior to the Supreme Court’s decision in INS v. Chadha, one house and two house vetoes were common methods by which the the Congress sought to control agency rulemaking. Though the Court’s opinion in Chadha dealt only with a one-house veto of the suspension of a deportation order by the Attorney General subsequent Supreme Court decisions have applied Chadha to two-house vetoes as well as agency rules. Various alternatives to the veto have become more popular. One of these alternatives is sunset legislation. Another is the use of joint resolution either to disapprove agency action or to conditionally approve them in advance. Similarly, the Congress can order agencies to “report and wait” before implementing new regulations, giving chances to the Congress to intervene with legislation, if it is needed. Given the demise of the legislative veto, the political, statutory and structured controls discussed above have now taken on even greater significance.
In 1996, a new chapter was added to Title 5 of the U.S. Code, and like the RFA and the Paperwork Reduction Act of 1980, Chapter 8 directly affected agency’s procedures. The title of the chapter is Congressional Review of Agency Rulemaking. Although the definition of the “rule” is broad, the focus of the legislation on the “major rules”. A major rule is defined as one having a significant impact on the economy, particularly on those whose annual economic effect is likely to be more than 100 million US Dollars. Under the statute, agencies are required to submit to both the Houses of Congress and the Comptroller General, a report containing information that can be used to evaluate the proposed rule. This report includes a cost-benefit analysis of the rule, if any, a regulatory flexibility analysis, and an analysis pursuant to the Unfunded Mandates Reform Act of the 1995.
Like in the case of the countries mentioned above, the Parliament of the FDRE also has the power to control the discretionary power of the executive organ of the government including all the dependent agencies established under the umbrella of the executive and those independent agencies that fall outside the organizational structure of the executive organ of the government. As clearly stipulated under Article 50(3) of the FDRE Constitution, the respective legislatures of both of the Federal and the State governments are the highest authority of the respective governments. Being the highest organ of the government, the House of Peoples’ Representative (hereinafter referred to as the legislature) has the power to exercise supervisory power over the administrative organs of the federal government. As clearly stated in Article 55(17) of the FDRE Constitution, the legislature “has the power to call and to question the Prime Minister and other Federal officials and to investigate the Executive’s conduct and discharge of its responsibilities.” Article 55(18) also dictates the legislature to discuss any matter pertaining to the powers of the executive “at the request of one-third of its members” and “to take decisions or measures it deems necessary.” Furthermore, in accordance with Article 74(11) of the FDRE Constitution, the Prime Minister is required to submit periodic reports of the activities accomplished by the executive as well as its plans and proposals to the House of Peoples’ Representatives.
In a similar vein, the cumulative reading of the relevant provisions of the FDRE House of Peoples’ Representative Working Procedure and Members’ Code of Conduct (Amendment) Proclamation No. 470/2005 under scored that the House of Peoples’ Representative has the power to call and question the Prime Minister and other Federal officials with a view to oversight and check them whether or not their activities are carried out in accordance with the set rules and regulations. All this clearly indicates that the parliament has the power to hold discussion at the floor concerning the conduct of the executive and other federal officers and to take remedial measure thereof.
The parliament can also exert control over the behavior of the government through the budgetary processes. Usually the executive organ of the government and some of the other administrative agencies prepare and defend their budget before the parliament. When the parliament is not happy with the performance records of the past and /or the current fiscal year, it may resort to cutting off the proposed budget of the concerned agency for the next fiscal year. The Legislature has also the power to oversight the conduct of the executive and other federal officers through the instrumentality of its standing committees. The various standing committees of the parliament can visit the concerned institutions and offices to observe whether or not they are discharging their responsibilities to the level of their expectation in accordance with the law. Each standing committee of the parliament can bring to the attention of the parliament any act of the executive organ of the federal government and federal offices that necessitates parliamentary deliberation.
Many administrative agencies are formed by acts of the parliament (usually referred to as the parent act or enabling legislation). In the parent act, the legislature can specify the scope of the power entrusted to an agency and incorporate principles, guidelines and standards that regulate the decision-making process of the agency. In this regard, the legislature can play a great role in controlling the agencies by clearly defining their respective powers, procedures and structures. Where circumstances justify it, in addition to shrinking the activities of the agency by cutting off the budget in case of need, the legislature is also at liberty to demolish the agency by another legislative act.
However, in Ethiopia, unlike in the countries discussed above, there is no formal procedure by which the parliament can control the rulemaking power of the administrative agencies. For example, except for the regulations issued by the Council of Ministers at the Federal level and by the respective counter part federal units, there is no general formal requirement for other administrative rules to be published in the register (Negarit Gazette). An attempt was made to regulate the rulemaking process of the administrative agencies under the Draft Federal Administrative Procedure Proclamation No. 2001. Had the draft been adopted in the form of law, it would have been facilitated the so-called political control of rulemaking powers of the administrative agencies. Because the draft incorporated a number of requirements that ensure, among other things, public participation and publication of the rules adopted.
The executive organ of the government also has the power to oversight the activities of the various government offices in different modalities. As it was discussed somewhere else, there are possibilities whereby some administrative agencies may be formed by executive order without the blessing of the parliament. Those agencies or bureaus formed under the executive hierarchy (referred to as executive dependent agencies) are subject to the supervision of the executive organ of the government. So, the concerned ministry of the government can put different modalities of control to ensure whether or not the authorities formed under its hierarchy are acting within the bound of the law. In relation to this, Article 77 of the FDRE Constitution, which deals with the powers and functions of the Council of Ministers, in its sub-Article 2 states that the Council of Ministers “shall decide on the organizational structure of ministries and other organs of government responsible to it; it shall coordinate their activities and provide leadership.”
The executive organ of the government may also exercise some indirect control over the so-called independent agencies that are accountable to the Legislative organ of the government. In this regard Article 74(7) of the FDRE Constitution is worth mentioning. It says “He [the Prime Minister]” as the chief executive has the power to select and submit “for approval to the House of Peoples’ Representatives nominations for posts of Commissioners …and Auditor General.” This indicates that the executive organ of the government can have a sort of loose control over the independent agencies as well.
In many cases, there are also dual accountability systems. For example, as it can be inferred from Article 76(2) & (3) of the FDRE Constitution, the Council of Ministers are made jointly accountable to the Prime Minister and to the House of Peoples’ Representatives, respectively. Thus, in the exercise of the powers entrusted to it by the constitution and other legislations, the executive organ of the government can oversee the activities of the various administrative agencies of the government responsible to it.
Control by Administrative Tribunals
The decisions of administrative agencies can also be subjected to the supervision of administrative tribunals. As it has been briefly discussed previously, administrative tribunals are the administrative counter part of ordinary courts. Technically speaking, administrative tribunals also referred to as administrative courts: courts that are established outside the organizational structure of ordinary/regular courts. In terms of function, administrative tribunals are similar to ordinary courts, as both are entrusted with judicial power. Having said this as a compliment to the previous discussion, let us briefly see the type of control administrative tribunals exercise over the administrative agencies.
Despite the differences in terms of appointment, composition, jurisdiction, and tenure and so on from one country to another country, administrative tribunals exercise important supervisory role over the decisions of administrative agencies. Administrative tribunals undertake merits review over the decision of administrative agencies falling under the former jurisdiction. The purpose of a merits review action, as explained by the Australian Administrative Review Council, is to decide whether the decision which is being challenged is ‘correct and preferable’ decision. The Council provided this explanation by making reference to the defect it observed in a leading case as follows:
In the leading authority on the role and function of the AAT [Administrative Appeal Tribunal] in undertaking merits review of decisions- the decision of the Full Federal Court in Drake v Minister for Immigration and Ethnic affairs (1979) 24 ALR 577- Chief Justice Bowen and Justice Deane said, at page 589, that the question for the determination of the AAT was whether the decision was the ‘correct or preferable one’ on the material before the Tribunal. In the Council’s view, their Honours intended to convey the meaning that a decision must be legally correct, but that if there is a range of decisions that could be made, all of which would be correct, the decision-maker has a choice as to the preferable decision. However, the phrase ‘correct or preferable’ may give the impression that a decision may be the preferable decision, even though it is not correct. For this reason, the Council prefers the phrase ‘correct and preferable’.
In the Council’s view, the overall objective of merits review system is to ensure that all administrative decisions of government are correct and preferable. As per the Council’s interpretation, when the decision is not both correct and preferable, the tribunal can ordinarily substitute it by a new decision. The process of merits review will typically involve a review of all the facts that support a decision. That is, not only disputes on point of law but also those disputes on point of fact involving an administrative agency as a party may be subjected to the review of administrative tribunals.
Having appreciated the important roles that the administrative tribunals may play, many jurisdictions of the contemporary world have established tribunals that fit their respective realities.
As was mentioned in the previous units, the principle of separation of state power among the three organs of the government (the legislature, the executive and the judiciary) has been blessed in many democratic jurisdictions of the modern world. The objective of the principle of the separation of powers is to promote the ideal of law, liberty and democracy by controlling circumstances that give rise to tyranny and dictatorship. As was discussed earlier, the concentration of legislative, executive and judicial powers or any combination of these in the hands of one person or body of persons is the primary cause of tyranny and dictatorship. According to the advocates of this principle, tyranny and dictatorship cannot strive where power is divided amongst the three organs, and where there are effective checks and balances. Thus, the purpose of the principle of separation of state powers is not to create three empires, but to create an effective system for checking and balancing among the three organs of the government. In the previous sub-section, we have seen ways in which the legislature checks the powers of administrative agencies. This sub-section, in turn, discusses the modalities of judicial control of administrative agencies.
In line with the principle of separation of state powers and the need for checking and balancing, the FDRE Constitution, among other things, vests judicial power in the judiciary. Judicial power both at the Federal and State levels are vested in the judiciary. This means that the judiciary is made the final arbiter of disputes on point of law and facts. Thus, the judiciary is one of the most effective machineries in restraining administrative agencies within the bounds of their powers. Individuals aggrieved by agency decisions may seek court intervention in appropriate cases.
Broadly speaking, there are two modalities by which the judiciary can exercise supervisory role over the powers of administrative agencies. These are appeal and judicial review. The striking difference between appeal and judicial review is that the former is statutory in origin whereas the latter is the inherent power of courts. Concerning this, Cane writes:
It is important to understand the main difference between appeal and review. The first relates to the power of the court: in appeal proceedings the court has the power to substitute its decision on the matter in issue for that of the body appealed from…. In review proceedings, on the other hand, the court’s basic power in relation to an illegal decision is to quash it, that is, to hold it to be invalid. If any of the matters in issue have to be decided again, this must be done by the original deciding authority and not by the supervising court. If the authority was under a duty to make a decision on the matters in issue between the parties, this duty will revive when the decision is quashed and it will then be for the authority to make a fresh decision. It is also open to the court, in appropriate cases, to issue an order requiring the authority to go through the decision-making process again.
Another course open to the …Court when it quashes the decision of a government body is to remit the matter to the agency with a direction to reconsider it in accordance with the findings of the …Court. The difference between this and the two previous outcomes is that under this procedure the agency does not have to go through the whole decision-making process again. For example, it might be that all the relevant facts have already been ascertained and the finding of the…Court only concerns their legal significance. In such a case a complete reconsideration of the case, including the taking of evidence and the findings of facts, would be a waste of time and money; so the court can remit the case and direct the authority to reconsider the facts in the light of the law as it has been held to be. This procedure differs from an appeal in only a very formal sense. On the other hand, remission would not be appropriate where, for example, the authority is found to have been biased. Then a complete rehearing before a differently constituted body would be needed in order for justice to be seen to be done.
The second main distinction between appeal and review relates to the subject matter of the court’s jurisdiction. This distinction can be put briefly by saying that whereas an appellate court has power to decide whether the decision under appeal was ‘right or wrong’, a court exercising supervisory powers may only decide whether the decision under review was ‘legal’ or not. If the decision is illegal it can be quashed; otherwise the court cannot intervene, even if it thinks the decision to be wrong in some respect. (Cane, pp. 8-9)
In a nutshell, the judiciary is an important organ of the state machinery in controlling the powers of administrative agencies through its supervisory power (judicial review) and appellate power. The supervisory power (reviewing) of the court is different from its appellate jurisdiction in terms of the source and the scope of the respective powers. In the common law tradition, judicial review is treated as the inherent power of ordinary courts. But the source of the appellate power of courts is legislation (statutory in origin). Judicial review is a technical review whereby the court tests whether an agency decisions are legal or illegal. An appellate court may substitute a new decision by overruling the decision of the lower body where the appeal was brought. Hence, it is a merits review.
6.2.7 Control by Human Rights Commission and Ombudsman
As it has been already indicated, different jurisdictions adopt various modalities for controlling the powers of administrative agencies which include parliamentary control, judicial control, and control by administrative tribunals. Each of these controlling mechanisms, however, has its own shortcomings. Individuals need to have other alternative forums that can be easily accessed, and devise speedy solutions to their administrative grievances. In many jurisdictions, watchdog institutions have been relied on as alternative forums for controlling administrative agencies, especially on administrative matters that are not suitable for parliamentary deliberation and adjudication. Appreciating the role of these institutions in promoting good governance, protecting and enforcing human rights, the FDRE Constitution under Sub- Articles 14 & 15 of Article 55 dictate the House of Peoples’ Representatives to establish the Human Rights Commission and the institution of Ombudsman respectively. Accordingly, the House established the Human Rights Commission and the Institution of Ombudsman in Proclamations No. 210/2000 & 211/2000, respectively.
Human Rights Commission
As clearly provided under Article 5 of the Human Rights Establishment Proclamation No.210/2000, the objective of the Commission is “to educate the public be aware of human rights, see to it that human rights are protected, respected and fully enforced as well as to have the necessary measure taken where they are found to have been violated.” In order to attain these objectives, great latitude of powers is entrusted to the Commission. Article 6 of the proclamation deals with the ‘powers and duties’ of the Commission: the following are among the powers and duties given to the commission:
- To ensure that the human rights and freedoms provided for under the Constitution of the Federal Democratic Republic of Ethiopia are respected by all citizens, organs of state, political organizations and other associations as well as by their respective officials;
- To ensure that laws, regulations and directives as well as government decisions and orders do not contravene the human rights of citizens guaranteed by the Constitution;
- To educate the public, using the mass media and other means, with a view to enhancing its tradition of respect for, and demand for enforcement of, rights upon acquiring sufficient awareness regarding human rights;
- To undertake investigation, upon complaint or its own initiation, in respect of human rights violation;
- To make recommendations for the revision of existing laws, enactment of new laws and formulation of policies;
- To provide consultancy services on matters of human rights;
- To forward its opinion on human rights reports to be submitted to international organs and
- To perform such other activities as may be necessary to attain its objectives.
From the above lists, we can infer that the Human Rights Commission has been entrusted with such a broad range of powers that are important for the attainment of its objectives in the promotion, protection and enforcement of human rights guaranteed under the FDRE Constitution. Up on receiving complaints or when necessary on its own motion, the Commission may conduct investigation on alleged violations of human rights and is expected to make all the efforts to settle the complaint brought before it amicably. Although the Commission’s recommendations are not binding, the reports it may issue manifesting human rights violations have far reaching moral and political overtone. What makes the commission very important is that it can receive complaints concerning allegations of human rights violations formally and informally via different mediums of communications; it can also investigate violations of said rights on its own motion.
The Institution of Ombudsman is also one of the widely used important institutions for checking the powers of administrative agencies in the contemporary world. The word “ombudsman” which is Scandinavian in origin can be translated as citizen’s defender or representative of the people. In its Swedish original conception, it is said that it is gender neutral that represents persons of either sex that represent the institution. According to in Rhodes’ (1974:7) defines Ombudsman as follows: ‘The Ombudsman: Understanding the Concept’ at page 7, the 1974 Resolution of the International Bar Association, defined the
…an office provided for by the constitution or by action of the legislature or parliament and headed by an independent high level public official who is responsible to the legislature or parliament, who receives complaints from aggrieved persons against Government agencies, officials, and employees, or who acts on his own motion, and who has the power to investigate, recommend corrective action, and issue reports.
This definition seems that it is broad and all-inclusive. However, it has to be noted that it may not fit the situation across countries as there are differences related to the manner of establishment of the office and the legal weight of its recommendations from jurisdiction to jurisdiction.
By Proclamation No.211/2000, the Federal House (House of Peoples’ Representatives) of Ethiopia proclaimed the establishment of the Institution of Ombudsman. Nowhere is the term ‘Ombudsman’ defined under the proclamation. However, it is not difficult to understand the nature of this institution from the powers and duties entrusted to it and from the whole spirit of the proclamation. As can be inferred from the preamble of the above proclamation, there are fundamental premises that necessitate the establishment of the institution of Ombudsman. These are:
- It appreciates the ever increasing powers and functions of the executive organs of the government and the effect of their decisions on the daily lives and rights of the citizens;
- It takes a firm stand that unjust decisions and orders of the executive organs and officials that prejudices the lives and rights of citizens have to be rectified or prevented;
- It appreciates the possibility that citizens having suffered from maladministration may be left without redressing unless supported by an institution, which is easily accessible to them.
Thus, these are the core premises that necessitate the establishment of the institution of Ombudsman. The objective of the Institution, as clearly provided in Article 5 of the proclamation, is to bring about good governance that is of high quality, efficient and transparent, and are based on the rule of law, by way of ensuring that citizens rights and benefits provided for by law are respected by organs of the executive. In order to attain these objectives, in Article 6 of the proclamation, the Institution entrusted with a broad range of powers and duties. These are to:
- Supervise that administrative directives and decisions adopted by the executive organs and the practices thereof do not contravene the constitutional rights of citizens and the law as well;
- Receive and investigate complaints in respect of maladministration;
- Conduct supervision, with a view to ensuring that the executive carries out its functions in accordance with the law and to preventing maladministration;
- Seek remedies in case where it believes that maladministration has occurred;
- Undertake studies and research on ways and means of curbing maladministration;
- Making recommendations for the revision of existing laws, practices or directives and for the enactment of new laws and formulation of policies, with a view to bringing about better governance and
- Perform such other functions as are related to its objectives.
Thus, from these open ended broad range of powers entrusted to the Institution of Ombudsman, it can be safely said that this institution, considering that it maintains its institutional capacity and independence, would contribute a lot to the promotion of high quality good governance- a system of governance that renders efficient, effective and transparent service to the public without compromising the constitutionally guaranteed rights of the citizens. The primary jurisdiction of the institution of Ombudsman is to investigate an administrative actions or inactions following the lodging of complaints or on its own motion (initiation) with a view to ascertain whether there exist maladministration or not. The Institution is expected to resolve the complaints brought before it through a process of conciliation by bringing the parties together. Where the results of its investigation indicate the existence of maladministration, the institution is required to recommend the concerned agency to rectify the maladministration committed and to discontinue the act, practice, or directives having caused same.
The accessibility of the institution of ombudsman is an advantage, in addition to its broad jurisdiction to investigate cases of maladministration. The institution can receive complaints of maladministration in any form and can also conduct investigation upon its own motion. In this regard, it provides an accessible alternative to individuals who have no other necessary means to challenge the prejudice caused to their interest before court of law.
In short, ensuring high quality of good governance in the administration system is the ideal goal of the Institution of Ombudsman in Ethiopia. Its bottom line expectation is to exert utmost effort to curve maladministration by taking appropriate proactive measures that prevent and rectify administrative malpractices by providing easily accessible administrative forum to the citizens.
What is Maladministration?
In the preceding sub-section, the term maladministration was mentioned repeatedly. As clearly indicated in the provisions of the proclamation that established the institution of Ombudsman (proc. No.211/2000), fighting maladministration is among the primary duties that necessitates the establishment of the Institution of Ombudsman. So, The pertinent question in this sub-section is related to the concept of maladministration. In addition to establishing and empowering the Institution of Ombudsman in order to curve maladministration in the administration system, providing a working definition of the term maladministration may have paramount importance in helping the institution to carry out its responsibilities efficiently and effectively within the domain of its power. However, despite its importance, providing a clear-cut definition of the term maladministration has remained a difficult business for the lawmakers. Before discussing the definition provided under proclamation No. 211/2000, it seems very important to have a brief look at the definition given to the term maladministration by some authorities.
The term maladministration is a combination of two words: ‘mal’ and ‘administration’. According to Black’s Law Dictionary, the term “mal” is a “prefix meaning bad, wrong fraudulent.” (Black’s Law Dictionary, 6th Ed.) Thus, while prefixed with the term administration, it may give the meaning bad, wrong or fraudulent administration. However, the cycle of confusion is not still there; determination of the acts or practices that constitute bad administration is still another problem. Consensus may not be reached concerning the exact meaning of maladministration between different jurisdictions. Having regard to the level of their economic, socio-cultural and political realities, jurisdictions may have different understanding concerning the issue as to what constitutes maladministration or its antithesis good administration as the level of efficiency and effectiveness of the administration in turn may vary due to the differences in their human and physical resources both in terms of quality and quantity. However, providing a working definition or explanation of the term maladministration, may be of paramount importance at, least, for the purpose of this discussion.
Section 15(1) of the Australian ‘Ombudsman Act 1976’ sets out the occasions that may give rise to the Ombudsman reporting action to the department or concerned authority. These occasions include circumstances in which the action:
-appears to be contrary to law
-was unreasonable, unjust, oppressive or improperly discriminatory;
-was in accordance with a rule of law but the rule is unreasonable, unjust, oppressive or improperly discriminatory;
-was based either wholly or partly on a mistake of law or of fact;
-was otherwise, in all the circumstances, wrong; or
In the course of taking the action, a discretionary power had been exercised for an improper purpose or on irrelevant grounds.
Sir William Reid, who was an English parliamentary ombudsperson until 2 January 1997, criticized the attempt to define the term maladministration in the 1993 annual report of the parliamentary commissioner for administration stating: “to define maladministration is to limit it. Such limitation could work to the disadvantage of individual complaints with justified grievances which did not fall within a given definition.” Thus, instead of providing a single definition, the above quoted authority suggested the following 15 elements to be incorporated in maladministration:
- Rudeness (though that is a matter of degree)
- Unwillingness to treat the complaint as a person having rights
- Refusal to answer reasonable questions
- Neglecting to inform a complaint on request of his or her rights of entitlement
- Knowingly giving advice which is misleading or inadequate
- Ignoring valid advice or overruling considerations which would produce an uncomfortable result for the over ruler
- Offering no redress or manifestly disproportionate redress
- Showing bias whether because of color, sex or any other grounds
- Omission to notify those who thereby lose a right of appeal
- Refusal to inform adequately of the right to appeal
- Faulty procedures
- Failure by management to monitor compliance with adequate procedures
- Cavalier disregard of guidance, which is intended to be followed in the interest of equitable treatment of those who use a service
- Partiality and
- Failure to mitigate the effects of rigid adherence to the letter of the law that produces manifestly inequitable treatment. (http/www.gahooygle.com=maladministration.)
As contrasted to the broad definitions and explanations provided above, Article 2(5) of Proc. No.211/2000 defined the term narrowly as follows: “maladministration includes acts committed, or decisions given, by executive government organs, in contravention of administrative laws, the labour law or other laws relating to administration”. Thus, in Ethiopia, the term maladministration is equated with violation of laws. But as can be inferred from the definitions and explanations given to the term maladministration in foreign jurisdictions, the term has a broad coverage beyond the mere violation of laws that involve the administration. Decisions contrary to reason and conscience, although may not contravene any formal law, are included within the domain of administrative law in the foreign jurisdictions mentioned above. In these countries, the term maladministration is broadly construed to include “any kind of administrative shortcomings”. Hence, the term maladministration is a fluid concept which is amenable to time and the realities of each country.
Mass Media Control
The role of the mass media in controlling maladministration cannot be undermined. A strong media plays vital role in promoting the ideals of democracy and good governance. By bringing administrative malpractices and corrupt behaviors of the agencies to the attention of the public, the media may also exert moral and political pressure on the day-to-day activities of the administration. Media can serve as a forum for mobilizing public opinions concerning governmental activities. Thus, media can be regarded as one of the most effective informal controlling mechanisms of the powers of administrative agencies provided that freedom of the press is well guaranteed.