For
a long time the similarity between constitutional law and administrative law
had led to confusion between both because the latter was, until very recently,
treated as an appendage of or annexure to the former.
One
of the reasons therefor is that the two were fused for a long time because
English scholars such as Austin and Maitland hesitated to see administrative
law as a body of law distinct from constitutional law.
Also
A.V. Dicey’s denial of the existence of administrative law in the UK in his
exposition on the rule of law worsened the non-recognition of administrative
law as an autonomous course of study.
Moreover,
this blurred relationship between administrative law and constitutional law was
not helped by the fact that the UK operates an unwritten constitution.
Thus,
it was usual for textbooks on constitutional law and administrative law to
contain much of constitutional law and little of administrative law.
However,
with the recognition of administrative law as an independent course of study,
the situation has since improved as we now find books that are exclusively
devoted to administrative law and, more importantly, administrative law is no
longer tied to the apron string of constitutional law.
In
this article, you shall be able to:
•
Compare administrative law with constitutional law
•
Contrast administrative law with constitutional law.
Sometimes, a question is asked as to whether there is any distinction between constitutional and administrative law.
Till recently, the subject of
administrative law was dealt with and discussed in the books of constitutional
law and no separate and independent treatment was given to it.
In
many definition of administrative law, it was included in constitutional law.
According
to Maitland, while constitutional law deals with structure and the broader
rules which regulate the functions, the details of the functions are left to
administrative law.
According
to Hood Phillips, ‘constitutional law is concerned with the organization and
functions of government at rest while administrative law is concerned with that
organization and function in motion.
But
the opinion of English and American authors is that the distinction between
constitutional law and administrative law is one of degree, convenience and
custom rather than logic and principle. It is not essential and fundamental in
character.
Relationship between constitutional law and administrative law
Sometimes,
a question is asked as to whether there is any distinction between
constitutional law and administrative law.
Though
in essence constitutional law does not differ from administrative law inasmuch
as both are concerned with functions of the Government and both are a part of
public law in the modern State and the sources of both are the same and they
are thus inter-related and complementary to each other belonging to one and the
same family. Strict demarcation, therefore, is not possible, yet there is a
distinction between the two.
According
to Maitland, while constitutional law deals with structure and the broader
rules which regulate the functions, the details of the functions are left to
administrative law.
According
to Hood Phillips, “Constitutional law is concerned with the organization and
functions of Government at rest whilst administrative law is concerned with
that organization and those functions in motion.”
But
the opinion of English and American authors is that the distinction between
constitutional law and administrative law is one of degree, convenience and
custom rather than that of logic and principle.
It is not essential and fundamental in character. Keith rightly remarks: “It is logically impossible to distinguish administrative law from constitutional law and all attempts to do so are artificial.”
Constitutional and administrative law both govern the affairs of the state.
To the early English writers on administrative law, there was virtually no difference between administrative law and constitutional law. This is evident from the words of Keith: “It is logically impossible to distinguish administrative from constitutional law and all attempts to do so are artificial.”
Some jurists like Felix Frankfurter even went as far as to call it “illegitimate and exotic”. The root of all confusion in the United Kingdom is its lack of a written constitution.
In a state with a
written constitution, the source of constitutional law is the Constitution
while the sources of administrative law include statutes, statutory instruments,
precedents and customs whereas in the United Kingdom, this distinction is not
very clear cut – it is in fact, quite blurred.
Due
to this lack of clarity, it will be vital to observe the views of jurists and
scholars on the difference between administrative law and constitutional law.
According
to Holland, constitutional law describes the various organs of the government
at rest, while administrative law describes them in motion. Holland contends
that the structure of the executive and the legislature comes within the
purview of constitutional law whereas their functioning is governed by
administrative law.
Jennings
puts forward another view, which says that administrative law deals with the
organization, functions, powers and duties of administrative authorities while
constitutional law deals with the general principles relating to the
organization and powers of the various organs of the State and their mutual
relationships and relationship of these organs with the individual.
Simply
put, constitutional law lays down the fundamentals of the workings of
government organs while administrative law deals with the details.
The
fundamental constitutional principle, inspired by John Locke, holds that “the
individual can do anything but that which is forbidden by law, and the state
may do nothing but that which is authorized by law”. Administrative law is the
chief method for people to hold state bodies to account.
People
can apply for judicial review of actions or decisions by local councils, public
services or government ministries, to ensure that they comply with the law.
Whatever
be the correct position, there always exist an area of overlap between
constitutional law and administrative law.
Read: Types of government with examples of countries
Administrative growth in constitutional matrix
Since
the English Constitution is unwritten, the impact of constitutional law upon
administrative law in England is insignificant and blurred. As Dicey observes,
the rules which in other countries form part of a constitutional code are the
result of the ordinary law of the land in England.
As
a result, whatever control the administrative authorities can be subjected to,
if any, must be deduced from the ordinary law, as contained in statutes and
judicial decisions.
But, in countries having written constitutions, there is an additional source of control over administrative action.
In these countries there are two sources or
modes of exercising judicial control over the administrative agencies –
constitutional and non-constitutional.
The
written constitution imposes limitations upon all organs of the body politic.
Therefore,
while all authors attempt to distinguish the scope of administrative law from
that of constitutional law, they cannot afford to forget not to mention that in
a country having written constitution with judicial review, it is not possible
to dissociate the two completely.
As
in all common law countries, a delegated legislation can be challenged as
invalid not only on the ground of being ultra vires the statute which confers
power to make it, but also on the additional ground that it contravenes any of
the fundamental rights guaranteed by the Constitution.
A
non-legislative and a purely administrative action having no statutory basis
will be void if it breaches any of those fundamental rights which set up limitations
against any State action.
Thus
a non-statutory administrative act may be void if it violates rights
guaranteeing equal protection; guaranteeing minority rights; guaranteeing
freedom of speech, association, etc.; guaranteeing equality of opportunity in
employment.
Thus the court would strike down any administrative instruction or policy, notwithstanding its temporary nature, if it operates as discriminatory, so as to violate any fundamental right of the person or persons discriminated against.
Non-statutory administrative action will also be void if its result
affects a fundamental right adversely where the Constitution provides that it
can be done only by making a law.
An
administrative act, whether statutory or non-statutory, will be void if it contravenes
any of the mandatory and justiciable provisions of the Constitution, falling
even outside the realm of fundamental rights.
In
cases of statutory administrative actions, there is an additional
constitutional ground upon which its validity may be challenged, namely, that
the statute, under which the administrative order has been made, is itself
unconstitutional.
Where
the impugned order is quasi-judicial, similarly, it may be challenged on the
grounds that the order is unconstitutional; that the law under which the order
has been made is itself unconstitutional. Constitutional law thus advances
itself into the judicial review chapter in administrative law in a country like
the USA or India.
The
courts in these countries have to secure that the administration is carried on
not only subject to the rule of law but also subject to the provisions of their
respective Constitutions.
It
can be observed that an attack upon the constitutionality of a statute relates
to constitutional law and the constitutionality of an administrative action
concerns administrative law, but the provisions of the same Constitution apply
in both the spheres.
The
object of both the common law doctrine of rule of law or supremacy of law and a
written constitution is the same, namely, the regulation and prevention of
arbitrary exercise of power by the administrative agencies of the Government.
The
rule of law insists that “the agencies of the Government are no freer than the
private individual to act according to their own arbitrary will or whim but
must conform to legal rules developed and applied by the courts”.
The
business of the written constitution is to embody these standards in the form
of constitutional guarantees and limitations and it is the duty of the courts
to protect the individual from a breach of his rights by the departments of the
Government or other administrative agencies.
So,
what features typical of constitution can we extract from the above?
They
are provided below:
(a)
Constitution is the organic, supreme law or the grundnormof a State
(b)
All laws inconsistent with it are to the extent of their inconsistency void
(c)
It regulates power distribution amongst the three arms of government
(d)
It governs the relationship between citizens on the one hand and governmental
agents on the other, and amongst governmental organsinterse
(e)
It stipulates the rights and duties of citizens
(f)
It constitutes a code of governance in the hands of government officials.
On
the other hand, administrative law is law relating to the power and the
exercise of such power of an administrative agency and which controls the
exercise of governmental powers through judicial reviews.
Also read: What are the Major Causes of Unemployment in Nigeria?
Conclusion on Administrative and Constitutional Law Distinguished
Although
the relationship between constitutional law and administrative law is not very
emboldened to be seen with naked eyes but the fact remains that concomitant
points are neither so blurred that one has to look through the cervices of the
texts with a magnifier to locate the relationship.
The
aforementioned veracities provide a cogent evidence to establish an essential
relationship between the fundamentals of both the concepts.
If
doubts still persist, the very fact that each author, without the exception of
a single, tends to differentiate between the two branches of law commands the
hypothecation of a huge overlap.
In
this article, we considered the features of both administrative law and
constitutional law before we attempted a comparison and a contrast between
them.
In
our discourse, we now know that, notwithstanding their similarities, they are, after
all, separate courses of study.
0 Comments