ETRIIILaw
Admin Law Lecture Series
Lecture
No. 1, Special Supplement on
Foundational
Considerations in Administrative Law,
University
of San Agustin, School of Law
Summer Class_2017
etreyes3law.blogspot.com
FOUNDATIONAL
CONSIDERATIONS
IN
ADMINISTRATIVE
LAW
By:
Atty. Eduardo
T. Reyes, III
I.
Constitutional Basis. Section
9, Article 2, 1987 Constitution.
Section 9. The State shall promote a just and dynamic social
order that will ensure the prosperity and independence of the nation and free
the people from poverty through policies that provide adequate social
services, promote full employment, a rising standard of living, and an improved
quality of life for all.
Comment:
All
governments enjoy moral ascendancy only because of their inherent power to
govern. To “govern” means: “to exercise continuous sovereign authority
over; esp: to control and direct the making and administration of policy”[1].
But history has taught that the inherent power to govern would easily be
eroded when the government proves a dismal failure in delivering social
services to its citizens. Indeed, bloody revolutions have toppled down mighty
rulers and kings from grave reasons of fleecing the coffers of the country to
opaque ones, i.e., the country being mired in stagnation.
“Providing
adequate social services, a full employment, rising standard of living, and an
improved quality of life for all” are the core reasons as to why governments
enjoy moral ascendancy and this is one of the “policy considerations” of the
1987 Philippine Constitution.
But
“life” and “living” are as complex, diverse and unpredictable as the world
where such life is lived on. Thus, the government must be guided by a set of
rules on how to best deliver social services; which rules must serve as
lodestar and yet should not be too rigid as to hamper efficiency.
Even
modern and prosperous nations that comprise the European Union had to learn
their lesson the hard way because their rules on trade are too rigid that is
why its “union” is “creaking at 60” as it “needs more flexibility to rejuvenate
itself” according to John Peet[2].
The
Constitution provides for the general framework of government. It is stable and
firm. Yet, the delivery of social services in order to “improve quality of life
for all” must always be in tune with the modern times. Therefore, dynamism
could only be achieved when the government creates agencies and line bureaus
that would address the constant changing of the times.
Administrative
Law is the branch of public law that makes sense of it all, by regulating all
the multifarious activities in life in order that the government can improve on
them. In such process of regulation, conflicts would arise between the
governmental agency implementing the regulation and the private individual , or
between or among the private individuals themselves the resolution of which
would be likewise incumbent upon the administrative agency. Should either party
be unsatisfied with the decision, a resort to judicial courts can be had
depending upon the rules provided by law.
A
quick tour of the world as to how administrative law is practiced would be very
educational, thus:
II. Administrative Law Across the
Globe[3].
Administrative
law is
the body of law that governs the
activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda.
Administrative law is considered a branch of public law. As a body of law,
administrative law deals with the decision-making of administrative units of
government (for example, tribunals, boards or commissions) that are part of a
national regulatory scheme in such areas
as police law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport. Administrative law
expanded greatly during the twentieth century, as legislative bodies worldwide
created more government agencies to regulate the
social, economic and political spheres of human interaction.
Civil
law countries often have specialized courts, administrative courts, that review these
decisions.
Administrative law in civil law countries
Unlike
most common-law jurisdictions, the majority of civil law jurisdictions have
specialized courts or sections to deal with administrative cases which, as a
rule, will apply procedural rules specifically designed for such cases and
different from that applied in private-law proceedings, such as contract or tort claims.
Brazil
In
Brazil, unlike most Civil-law jurisdictions, there is no specialized court or
section to deal with administrative cases. In 1998, a constitutional reform,
led by the government of President Fernando Henrique Cardoso, introduced regulatory
agencies as a part of the executive branch. Since 1988, Brazilian
administrative law has been strongly influenced by the judicial interpretations
of the constitutional principles of public administration (art. 37 of Federal
Constitution): legality, impersonality, publicity of administrative acts,
morality and efficiency.
Chile
The President of the Republic exercises the
administrative function, in collaboration with several Ministries or other
authorities with ministerial rank. Each Ministry has one or more
under-secretary that performs through public services the actual
satisfaction of public needs. There is not a single specialized court to deal with
actions against the Administrative entities, but instead there are several
specialized courts and procedures of review.
People's Republic of China
Administrative
law in the People's Republic of China was virtually non-existent before
the economic reform era initiated by Deng
Xiaoping. Since the 1980s, the People's Republic of China has constructed a new
legal framework for administrative law, establishing control mechanisms for
overseeing the bureaucracy and disciplinary committees for the Communist Party
of China. However, many have argued that the usefulness of these laws is vastly
inadequate in terms of controlling government actions, largely because of
institutional and systemic obstacles like a weak judiciary, poorly trained
judges and lawyers, and corruption.
In
1990, the Administrative Supervision Regulations (行政检查条例) and the Administrative
Reconsideration Regulations (行政复议条例) were passed. The 1993 State Civil Servant
Provisional Regulations (国家公务员暂行条例) changed the way government officials were
selected and promoted, requiring that they pass exams and yearly appraisals,
and introduced a rotation system. The three regulations have been amended and
upgraded into laws. In 1994, the State Compensation Law (国家赔偿法) was passed, followed by
the Administrative Penalties Law (行政处罚法) in 1996. Administrative Compulsory Law
was enforced in 2012. Adiministrative Litigation Law was amended in 2014.The
General Administrative Procedure Law is under way .
NOTE: The next article is a 2017 Update
from ETRIIILaw
(China’s Civil
Code. “Code Red” . Beijing. China finally starts to organize its legal
principles.[4]
“The
National People’s Congress (NPC), China’s rubber-stamp parliament, wrapped up
its annual session on March 15th. Usually its business is
unremarkabale. This year, however, a piece of legislation that was passed on
the final day may prove unusually important. It is known by the unlovely name
of the General Principles of Civil Law. It sets the stage for China to pass its
first civil code, an overarching law governing legal disputes other than those
involving crimes. X x xx
China has a civil law
system, which means that statutes are essential reference for judges. (In
common-law countries such as Britain and America, verdicts are also decided
according to precedent, ie., previous rulings by courts.) But under Communist
rule, China has muddled through without a unified civil code. It has bits of
one. It passed an inheritance law in 1985, a contract law in 1999 and a
property law in 2007. X x xThe country has been trying to write a civil code
since 1954. But China’s then ruler, Mao Zedong, was lukewarm about it- he did
not want any law that might restrict his power. X x xIn 2014 they decided to
try again, aiming to write one by 2020. This week’s approval of the code’s
general principles is the first fruit. It covers everything from individual
rights and the statute of limitations to whether fetuses can own property (they
can).”
Continue with Wikipaedia Article-
France
In
France, most claims against the national or local governments as well as claims
against private bodies providing public services [1] are handled
by administrative courts, which use the Conseil d'État (Council of State)
as a court of last resort for both ordinary and special courts.[2] The main
administrative courts are the tribunaux administratifs and
appeal courts are the cours administratives d'appel. Special
administrative courts include the National Court of Asylum Right as well as
military, medical and judicial disciplinary bodies. The French body of
administrative law is called "droit administratif".[3]
Over
the course of their history, France's administrative courts have developed an
extensive and coherent case law (jurisprudence
constante) and legal doctrine (principes
généraux du droit and principes fondamentaux reconnus par les
lois de la République), often before similar concepts were enshrined in
constitional and legal texts. These principes include:
·
Right
to challenge any administrative decision before an administrative court (droit
au recours) [5]
·
Equal
access to government employment (égalité d'accès à la fonction publique)
without regard for political opinions [7]
·
Right
to Entrepreneurship (Liberté du Commerce et de l'industrie, lit. freedom
of commerce and industry) [9]
French
administrative law, which is the founder of Continental administrative law, has
a strong influence on administrative laws in several other countries such as
Belgium, Greece, Turkey and Tunisia.
Germany
Administrative
law in Germany, called “Verwaltungsrecht”de:Verwaltungsrecht (Deutschland), generally rules the
relationship between authorities and the citizens and therefore, it establishes
citizens’ rights and obligations against the authorities. It is a part of the
public law, which deals with the organization, the tasks and the acting of the
public administration. It also contains rules, regulations, orders and
decisions created by and related to administrative agencies, such as federal
agencies, federal state authorities, urban administrations, but also admission
offices and fiscal authorities etc. Administrative law in Germany follows three
basic principles.
·
Principle
of the legality of the authority, which means that there is no acting against
the law and no acting without a law.
·
Principle
of legal security, which includes a principle of legal certainty and the
principle of nonretroactivity
·
Principle
of proportionality, which says that an act of an authority has to be suitable,
necessary and appropriate[11]
Administrative
law in Germany can be divided into general administrative law and special
administrative law.
General administrative law
The
general administration law is basically ruled in the Administrative Procedures
Law (Verwaltungsverfahrensgesetz [VwVfG]). Other legal sources are the Rules of
the Administrative Courts (Verwaltungsgerichtsordnung [VwGO]), the social
security code (Sozialgesetzbuch [SGB]) and the general fiscal law
(Abgabenordnung [AO]).[12]
Administrative Procedures Law
The
Verwaltungsverfahrensgesetz (VwVfG), which was enacted in 1977,[13] regulates the main
administrative procedures of the federal government. It serves the purpose to
ensure a treatment in accordance with the rule of law by the public authority.
Furthermore, it contains the regulations for mass processes and expands the
legal protection against the authorities. The VwVfG basically applies for the
entire public administrative activities of federal agencies as well as federal
state authorities, in case of making federal law. One of the central clause is
§ 35 VwVfG. It defines the administrative act, the most common form of action
in which the public administration occurs against a citizen. The definition in
§ 35 [14] says, that an
administration act is characterized by the following features:
It
is an official act[15] of an authority[16] in the field of
public law[17] to resolve an individual
case[18] with effect to the
outside.[19]
§§
36 – 39, §§ 58 – 59 and § 80 VwV––fG rule the structure and the necessary
elements of the administrative act. § 48 and § 49 VwVfG have a high relevance
in practice, as well. In these paragraphs, the prerequisites for redemption of
an unlawful administration act (§ 48 VwVfG [20]) and withdrawal of a
lawful administration act (§ 49 VwVfG [21]), are listed.[22]
Other legal sources
Administration
procedural law (Verwaltungsgerichtsordnung [VwGO]), which was enacted in 1960,
rules the court procedures at the administrative court. The VwGO is divided
into five parts, which are the constitution of the courts,[23] action, remedies
and retrial, costs and enforcement15 and final clauses and temporary
arrangements.[24]
In
absence of a rule, the VwGO is supplemented by the code of civil procedure
(Zivilprozessordnung [ZPO]) and the judicature act (Gerichtsverfassungsgesetz
[GVG]).[25] In addition to the
regulation of the administrative procedure, the VwVfG also constitutes the
legal protection in administrative law beyond the court procedure. § 68 VwVGO
rules the preliminary proceeding, called “Vorverfahren” or
“Widerspruchsverfahren”,[26] which is a
stringent prerequisite for the administrative procedure, if an action for
rescission or a writ of mandamus against an authority is aimed.[27] The preliminary
proceeding gives each citizen, feeling unlawfully mistreated by an authority,
the possibility to object and to force a review of an administrative act
without going to court. The prerequisites to open the public law remedy are
listed in § 40 I VwGO. Therefore, it is necessary to have the existence of a
conflict in public law[28] without any
constitutional aspects[29] and no assignment
to another jurisdiction.[30]
The
social security code (Sozialgesetzbuch [SGB]) and the general fiscal law are
less important for the administrative law. They supplement the VwVfG and the
VwGO in the fields of taxation and social legislation, such as social welfare
or financial support for students (BaFÖG) etc.
Special administrative law
The
special administrative law consists of various laws. Each special sector has
its own law. The most important ones are the
·
Town
and Country Planning Code (Baugesetzbuch [BauGB])
·
Federal
Control of Pollution Act (Bundesimmissionsschutzgesetz [BImSchG])
·
Industrial
Code (Gewerbeordnung [GewO])
·
Police
Law (Polizei- und Ordnungsrecht)
In
Germany, the highest administrative court for most matters is the federal
administrative court Bundesverwaltungsgericht. There are federal
courts with special jurisdiction in the fields of social security law (Bundessozialgericht) and tax law (Bundesfinanzhof).
Italy
Administrative
law in Italy, known as "'Diritto amministrativo", is a branch
of public law, whose rules govern the
organization of the public administration and the activities
of the pursuit of the public interest of the public administration and the
relationship between this and the citizens. Its genesis is related to the
principle of division of powers of the State. The administrative power,
originally called "executive", is to organize resources and people
whose function is devolved to achieve the public interest objectives as defined
by the law.[32]
The Netherlands
In
The Netherlands, administrative law provisions are usually contained in
separate laws. There is however a single General Administrative Law Act
("Algemene wet bestuursrecht" or Awb) that applies both to the making
of administrative decisions and the judicial review of these decisions in
courts. On the basis of the Awb, citizens can oppose a decision ('besluit')
made by an administrative agency ('bestuursorgaan') within the administration
and apply for judicial review in courts if unsuccessful.
Unlike
France or Germany, there are no special administrative courts of first instance
in the Netherlands, but regular courts have an administrative
"chamber" which specializes in administrative appeals. The courts of
appeal in administrative cases however are specialized depending on the case,
but most administrative appeals end up in the judicial section of the Council
of State (Raad van State).
Before
going to court, citizens must usually first object to the decision with the
administrative body who made it. This is called "bezwaar". This
procedure allows for the administrative body to correct possible mistakes
themselves and is used to filter cases before going to court. Sometimes,
instead of bezwaar, a different system is used called "administratief
beroep" (administrative appeal). The difference with
bezwaar is that administratief beroep is filed with a different administrative
body, usually a higher ranking one, than the administrative body that made the
primary decision. Administratief beroep is available only if the law on which
the primary decision is based specifically provides for it. An example involves
objecting to a traffic ticket with the district
attorney ("officier van justitie"), after which the decision can be
appealed in court.
In
addition, Netherlands General Administrative Law Act (GALA) is a rather good
sample of procedural laws in Europe
Sweden
In Sweden, there is a system of
administrative courts that considers only administrative law cases, and is
completely separate from the system of general courts.[33] This system has
three tiers, with 12 county administrative courts (förvaltningsrätt) as
the first tier, four administrative courts of appeal (kammarrätt) as the
second tier, and the Supreme Administrative Court of Sweden (Högsta
Förvaltningsdomstolen) as the third tier.
Migration
cases are handled in a two-tier system, effectively within the system general
administrative courts. Three of the administrative courts serve as migration
courts (migrationsdomstol) with the Administrative Court of Appeal in
Stockholm serving as the Migration Court of Appeal (Migrationsöverdomstolen).
Turkey
In
Turkey, the lawsuits against the acts and actions of the national or local
governments and public bodies are handled by administrative courts which are
the main administrative courts. The decisions of the administrative courts are
checked by the Regional Administrative Courts and Council of State. Council of
State as a court of last resort is exactly similar to Conseil d'État in France.[34][35]
Ukraine
As a
homogeneous legal substance isolated in a system of jurisprudence, the
administrative law of Ukraine is characterized as: (1) a branch of law; (2) a
science; (3) a discipline.[36]
Administrative
law in common law countries
Generally
speaking, most countries that follow the principles of common law have developed
procedures for judicial review that limit the
reviewability of decisions made by administrative law bodies. Often these
procedures are coupled with legislation or other common law doctrines that
establish standards for proper rulemaking. Administrative law may
also apply to review of decisions of so-called semi-public bodies, such
as non-profit corporations, disciplinary boards,
and other decision-making bodies that affect the legal rights of members of a
particular group or entity.
While
administrative decision-making bodies are often controlled by larger
governmental units, their decisions could be reviewed by a court of general jurisdiction under some
principle of judicial review based upon due
process (United States) or fundamental justice (Canada). Judicial
review of administrative decisions is different from an administrative appeal.
When sitting in review of a decision, the Court will only look at the method in
which the decision was arrived at, whereas in an administrative appeal the
correctness of the decision itself will be examined, usually by a higher body
in the agency.[citation needed] This difference is
vital in appreciating administrative law in common law countries.
The
scope of judicial review may be limited to
certain questions of fairness, or whether the
administrative action is ultra vires. In terms of ultra vires
actions in the broad sense, a reviewing court may set aside an administrative
decision if it is unreasonable (under Canadian
law, following the rejection of the "Patently Unreasonable" standard
by the Supreme Court in Dunsmuir v. New Brunswick), Wednesbury unreasonable (under British
law), or arbitrary and capricious (under U.S. Administrative Procedure
Act and
New York State law). Administrative law, as laid down by the Supreme Court of India, has also recognized two
more grounds of judicial review which were recognized but not applied by English
Courts, namely legitimate expectation and proportionality.
The
powers to review administrative decisions are usually established by statute,
but were originally developed from the royal prerogative writs of English
law,
such as the writ of mandamus and the writ
of certiorari. In certain Common Law jurisdictions, such
as India or Pakistan, the power to pass such
writs is a Constitutionally guaranteed power. This power is seen as fundamental
to the power of judicial review and an aspect of
the independent judiciary.
American
administrative law often involves the regulatory activities of so-called
"independent agencies", such as the Federal
Trade Commission,
whose headquarters is shown above.
In
the United States, many government agencies are organized under
the executive branch of government,
although a few are part of the judicial or legislative
branches.
In
the federal government, the executive branch,
led by the president, controls the federal executive
departments, which are led by secretaries who are members of
the United States Cabinet. The many independent agencies of
the United States government created by statutes enacted by Congress exist outside of
the federal executive departments but are still part of the executive branch.
Congress
has also created some special judicial bodies known as Article I tribunals to handle some
areas of administrative law.
The
actions of executive agencies and independent agencies are the main focus of
American administrative law. In response to the rapid creation of new
independent agencies in the early twentieth century (see discussion
below), Congress enacted the Administrative Procedure
Act (APA)
in 1946. Many of the independent agencies operate as miniature versions[citation needed] of the tripartite
federal government, with the authority to "legislate" (through rulemaking; see Federal Register and Code of Federal Regulations), "adjudicate" (through
administrative hearings), and to "execute" administrative goals
(through agency enforcement personnel). Because the United States Constitution sets no limits on
this tripartite authority of administrative agencies, Congress enacted
the APA to establish fair
administrative law procedures to comply with the constitutional requirements
of due process. Agency procedures are
drawn from four sources of authority: the APA, organic statutes, agency rules,
and informal agency practice. It is important to note, though, that agencies
can only act within their congressionally delegated authority,[37] and must comply
with the requirements of the APA.
The American Bar Association's official journal
concerning administrative law is the Administrative Law Review, a quarterly publication
that is managed and edited by students at the Washington College of Law.
Historical development
Stephen
Breyer,
a U.S. Supreme Court Justice since 1994, divides
the history of administrative law in the United States into six discrete
periods, in his book, Administrative Law & Regulatory Policy (3d
Ed., 1992):
·
English
antecedents & the American experience to 1875
·
1875
– 1930: the rise of regulation & the traditional model of administrative
law
·
The
New Deal
·
1945
– 1965: the Administrative Procedure Act & the maturation of the traditional model of
administrative law
·
1965
– 1985: critique and transformation of the administrative process
·
1985
– ?: retreat or consolidation
Agriculture
The
agricultural sector is one of the most heavily regulated sectors in the U.S.
economy, as it is regulated in various ways at the international, federal,
state, and local levels. Consequently, administrative law is a significant
component of the discipline of Agricultural Law. The United States Department of Agriculture and its myriad
agencies such as the Agricultural Marketing Service are the primary
sources of regulatory activity, although other administrative bodies such as
the Environmental Protection
Agency play
a significant regulatory role as well.
(Parting
Comment: The
Philippines adheres to a fusion of concepts from Civil Law and Common Law
Systems. Thus, as the lectures will traverse the minute details of Administrative
Law, aspects of the Civil Law and Common Law Systems would become evident in
Philippine Administrative Law and Jurisprudence).
