Administrative Law In Action: The Story Of Checks And Balances

posted in: Checks And Balances | 0

Law

Despite the fact that administrative law touches on almost every aspect of our lives, it is perhaps the most underestimated field of law.

From a simplistic point of view it forms part of public law, that is, it regulates the activities of departments of state and their accompanying functionaries. Broadly speaking it also encompasses the activities of natural and juristic persons (companies and organisations) that exercise public power or perform public functions.

Why Is It Necessary

The answer to this question in twofold. Firstly, these laws prescribe the procedures to be followed when state organs exercise public power. Secondly, the core aim of administrative rules is to ensure that public power is exercised within the boundaries of the law. It is for these reasons that administrative action is required to be:

  • lawful.
  • reasonable.
  • procedurally fair.

In line with this is the fact that written reasons must be given whenever the rights of individual persons are adversely affected by any administrative action taken.

State Powers

The law is there to regulate two basic relationships. There is the private law relationship that exists between private individuals like you and I. In this relationship the parties are on an equal footing. Then there is the public relationship, which is when one of the persons in the relationship exercises state authority or state power over the other. It is in the latter case that administrative laws find application.

The Obligations of State Departments

They exercise public power over us. However, such power must not be exercised arbitrarily. It ought to be exercised in a manner that is lawful, reasonable and fair. Lawful implies that such action must be according to the Constitution, any relevant legislation, court decisions and any unwritten law of the land (common law and custom). Procedural fairness requires public functionaries to follow the right procedures whilst giving affected persons the opportunity to state their side of the story before a decision is made.

Finally, all administrative action must be reasonable. By this it is meant that decisions made must have reasonable effect, that is, objectively speaking, you should be able to say: “Even though i don’t agree, i understand why the decision was taken.